STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, WELLS FARGO BANK, N.A., as Securities Administrator, CLAYTON FIXED INCOME SERVICES INC., as Credit Risk Manager, and U.S. BANK NATIONAL ASSOCIATION,...
EXECUTION
STRUCTURED
ASSET SECURITIES CORPORATION, as Depositor,
AURORA
LOAN SERVICES LLC, as Master Servicer,
XXXXX
FARGO BANK, N.A., as
Securities
Administrator,
XXXXXXX
FIXED INCOME SERVICES INC., as
Credit
Risk Manager,
and
U.S.
BANK
NATIONAL ASSOCIATION, as Trustee
___________________________
Dated
as
of August 1, 2007
___________________________
STRUCTURED
ASSET SECURITIES CORPORATION
MORTGAGE
LOAN TRUST 2007-WF2
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES
2007-WF2
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
16
|
|
|
Section
1.01.
|
Definitions.
|
16
|
|
Section
1.02.
|
Calculations
Respecting Mortgage Loans.
|
61
|
|
Section
1.03.
|
Calculations
Respecting Accrued Interest.
|
62
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
63
|
|
|
Section
2.01.
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
63
|
|
Section
2.02.
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
|
67
|
|
Section
2.03.
|
Representations
and Warranties of the Depositor.
|
69
|
|
Section
2.04.
|
Discovery
of Breach.
|
70
|
|
Section
2.05.
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
71
|
|
Section
2.06.
|
Grant
Clause.
|
72
|
|
ARTICLE
III THE CERTIFICATES
|
74
|
|
|
Section
3.01.
|
The
Certificates.
|
74
|
|
Section
3.02.
|
Registration.
|
75
|
|
Section
3.03.
|
Transfer
and Exchange of Certificates.
|
75
|
|
Section
3.04.
|
Cancellation
of Certificates.
|
82
|
|
Section
3.05.
|
Replacement
of Certificates.
|
82
|
|
Section
3.06.
|
Persons
Deemed Owners.
|
82
|
|
Section
3.07.
|
Temporary
Certificates.
|
82
|
|
Section
3.08.
|
Appointment
of Paying Agent.
|
83
|
|
Section
3.09.
|
Book-Entry
Certificates.
|
84
|
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
85
|
|
|
Section
4.01.
|
Collection
Account.
|
85
|
|
Section
4.02.
|
Application
of Funds in the Collection Account.
|
87
|
|
Section
4.03.
|
Reports
to Certificateholders.
|
90
|
|
Section
4.04.
|
Certificate
Account.
|
94
|
|
Section
4.05.
|
Securities
Administration Account.
|
95
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
97
|
|
|
Section
5.01.
|
Distributions
Generally.
|
97
|
|
Section
5.02.
|
Distributions
from the Certificate Account.
|
98
|
|
Section
5.03.
|
Allocation
of Losses.
|
111
|
|
Section
5.04.
|
Advances
by Master Servicer, Servicer and Securities Administrator.
|
112
|
|
Section
5.05.
|
Compensating
Interest Payments.
|
113
|
|
Section
5.06.
|
Basis
Risk Reserve Fund.
|
113
|
|
Section
5.07.
|
Supplemental
Interest Trust.
|
113
|
|
Section
5.08.
|
Rights
of Swap Counterparty.
|
116
|
i
|
Section
5.09.
|
Termination
Receipts.
|
117
|
|
ARTICLE
VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS
OF
DEFAULT
|
119
|
|
|
Section
6.01.
|
Duties
of Trustee and Securities Administrator.
|
119
|
|
Section
6.02.
|
Certain
Matters Affecting the Trustee and the Securities
Administrator.
|
122
|
|
Section
6.03.
|
Trustee
and Securities Administrator Not Liable for Certificates.
|
123
|
|
Section
6.04.
|
Trustee
and the Securities Administrator May Own Certificates.
|
124
|
|
Section
6.05.
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
124
|
|
Section
6.06.
|
Resignation
and Removal of Trustee and the Securities Administrator.
|
125
|
|
Section
6.07.
|
Successor
Trustee and Successor Securities Administrator.
|
126
|
|
Section
6.08.
|
Merger
or Consolidation of Trustee or the Securities
Administrator.
|
127
|
|
Section
6.09.
|
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
127
|
|
Section
6.10.
|
Authenticating
Agents.
|
129
|
|
Section
6.11.
|
Indemnification
of Trustee and Securities Administrator.
|
130
|
|
Section
6.12.
|
Fees
and Expenses of Securities Administrator, Trustee and
Custodian.
|
131
|
|
Section
6.13.
|
Collection
of Monies.
|
131
|
|
Section
6.14.
|
Events
of Default; Trustee To Act; Appointment of Successor.
|
132
|
|
Section
6.15.
|
Additional
Remedies of Trustee Upon Event of Default.
|
137
|
|
Section
6.16.
|
Waiver
of Defaults.
|
137
|
|
Section
6.17.
|
Notification
to Holders.
|
137
|
|
Section
6.18.
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
137
|
|
Section
6.19.
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
138
|
|
Section
6.20.
|
Preparation
of Tax Returns and Other Reports.
|
138
|
|
Section
6.21.
|
Reporting
Requirements of the Commission
|
146
|
|
Section
6.22.
|
No
Merger.
|
146
|
|
Section
6.23.
|
Indemnification
by the Securities Administrator.
|
146
|
|
ARTICLE
VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST
FUND
|
147
|
|
|
Section
7.01.
|
Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation
of All Mortgage Loans; Purchase of Lower Tier REMIC 1 Uncertificated
Regular Interests.
|
147
|
|
Section
7.02.
|
Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC 1
Uncertificated Regular Interests.
|
151
|
|
Section
7.03.
|
Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests.
|
152
|
|
Section
7.04.
|
Optional
Repurchase Right.
|
153
|
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
154
|
|
|
Section
8.01.
|
Limitation
on Rights of Holders.
|
154
|
|
Section
8.02.
|
Access
to List of Holders.
|
155
|
|
Section
8.03.
|
Acts
of Holders of Certificates.
|
155
|
ii
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER;
CREDIT RISK MANAGER
|
157
|
|
|
Section
9.01.
|
Duties
of the Master Servicer.
|
157
|
|
Section
9.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
|
157
|
|
Section
9.03.
|
Master
Servicer’s Financial Statements and Related Information.
|
158
|
|
Section
9.04.
|
Power
to Act; Procedures.
|
158
|
|
Section
9.05.
|
Enforcement
of Servicer’s and Master Servicer’s Obligations.
|
160
|
|
Section
9.06.
|
Collection
of Taxes, Assessments and Similar Items.
|
161
|
|
Section
9.07.
|
Termination
of Servicing Agreement; Successor Servicers.
|
162
|
|
Section
9.08.
|
Master
Servicer Liable for Enforcement.
|
163
|
|
Section
9.09.
|
No
Contractual Relationship Between the Servicer and Trustee or
Depositor.
|
163
|
|
Section
9.10.
|
Assumption
of Servicing Agreement by Securities Administrator.
|
163
|
|
Section
9.11.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
164
|
|
Section
9.12.
|
Release
of Mortgage Files.
|
164
|
|
Section
9.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
165
|
|
Section
9.14.
|
Representations
and Warranties of the Master Servicer.
|
166
|
|
Section
9.15.
|
Opinion.
|
169
|
|
Section
9.16.
|
Standard
Hazard and Flood Insurance Policies.
|
169
|
|
Section
9.17.
|
Presentment
of Claims and Collection of Proceeds.
|
169
|
|
Section
9.18.
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
170
|
|
Section
9.19.
|
Trustee
To Retain Possession of Certain Insurance Policies and
Documents.
|
170
|
|
Section
9.20.
|
[Reserved]
|
170
|
|
Section
9.21.
|
Compensation
to the Master Servicer.
|
170
|
|
Section
9.22.
|
REO
Property.
|
171
|
|
Section
9.23.
|
Notices
to the Depositor and the Securities Administrator
|
172
|
|
Section
9.24.
|
Reports
to the Trustee.
|
172
|
|
Section
9.25.
|
Assessment
of Compliance and Attestation Reports.
|
173
|
|
Section
9.26.
|
Annual
Statement of Compliance with Applicable Servicing
Criteria.
|
174
|
|
Section
9.27.
|
Merger
or Consolidation.
|
175
|
|
Section
9.28.
|
Resignation
of Master Servicer.
|
175
|
|
Section
9.29.
|
Assignment
or Delegation of Duties by the Master Servicer.
|
175
|
|
Section
9.30.
|
Limitation
on Liability of the Master Servicer and Others.
|
176
|
|
Section
9.31.
|
Indemnification;
Third-Party Claims.
|
177
|
|
Section
9.32.
|
Special
Servicing of Delinquent Mortgage Loans.
|
177
|
|
Section
9.33.
|
Alternative
Index.
|
178
|
|
Section
9.34.
|
Duties
of the Credit Risk Manager.
|
178
|
|
Section
9.35.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
180
|
|
Section
9.36.
|
Indemnification
by the Credit Risk Manager.
|
180
|
|
Section
9.37.
|
Removal
of Credit Risk Manager.
|
180
|
|
ARTICLE
X REMIC ADMINISTRATION
|
182
|
|
|
Section
10.01.
|
REMIC
Administration.
|
182
|
|
Section
10.02.
|
Prohibited
Transactions and Activities.
|
185
|
|
Section
10.03.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
185
|
iii
|
Section
10.04.
|
REO
Property.
|
186
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
187
|
|
|
Section
11.01.
|
Binding
Nature of Agreement; Assignment.
|
187
|
|
Section
11.02.
|
Entire
Agreement.
|
187
|
|
Section
11.03.
|
Amendment.
|
187
|
|
Section
11.04.
|
Voting
Rights.
|
189
|
|
Section
11.05.
|
Provision
of Information.
|
189
|
|
Section
11.06.
|
Governing
Law.
|
190
|
|
Section
11.07.
|
Notices.
|
190
|
|
Section
11.08.
|
Severability
of Provisions.
|
190
|
|
Section
11.09.
|
Indulgences;
No Waivers.
|
191
|
|
Section
11.10.
|
Headings
Not To Affect Interpretation.
|
191
|
|
Section
11.11.
|
Benefits
of Agreement.
|
191
|
|
Section
11.12.
|
Special
Notices to the Rating Agencies and any NIMS Insurer.
|
191
|
|
Section
11.13.
|
Conflicts.
|
193
|
|
Section
11.14.
|
Counterparts.
|
193
|
|
Section
11.15.
|
Transfer
of Servicing.
|
193
|
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
|
Name
of Servicing Agreement
|
|
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
|
Name
of Custodial Agreement
|
|
Exhibit
L
|
Name
of Credit Risk Management Agreement
|
|
Exhibit
M-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security
|
|
Exhibit
M-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global Security
to
Restricted Global Security
|
|
Exhibit
N
|
Interest
Rate Cap Agreement
|
|
Exhibit
O
|
Interest
Rate Swap Agreement
|
|
Exhibit
P-1
|
Additional
Form 10-D Disclosure
|
|
Exhibit
P-2
|
Additional
Form 10-K Disclosure
|
|
Exhibit
P-3
|
Additional
Form 8-K Disclosure
|
iv
|
Exhibit
P-4
|
Additional
Disclosure Notification
|
|
Exhibit
Q-1
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification
|
|
Exhibit
Q-2
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification to be Provided by the Securities
Administrator
|
|
Exhibit
Q-3
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification to be Provided by the Trustee
and
the Paying Agent
|
|
Exhibit
R-1
|
Form
of WatchList Report
|
|
Exhibit
R-2
|
Form
of Loss Severity Report
|
|
Exhibit
R-3
|
Form
of Mortgage Insurance Claims Report
|
|
Exhibit
R-4
|
Form
of Prepayment Premiums Report
|
|
Exhibit
R-5
|
Form
of Analytics Report
|
|
Exhibit
S
|
Form
of Certification Regarding Servicing Criteria to be Addressed in
Report on
Assessment of Compliance
|
|
Exhibit
T
|
Form
of Modified Loan Report
|
|
Exhibit
U
|
Form
of Certification to be Provided by the Credit Risk
Manager
|
|
Exhibit
V
|
Transaction
Parties
|
|
Exhibit
W
|
[Reserved]
|
|
Exhibit
X
|
[Reserved]
|
|
Exhibit
Y
|
Form
of Call Option Notice
|
|
Exhibit
Z
|
Form
of Purchaser Call Option Notice
|
|
Schedule
A
|
Mortgage
Loan Schedule (by Mortgage Pool)
|
|
Schedule
B
|
First
Payment Default Mortgage Loans
|
v
This
TRUST AGREEMENT, dated as of August 1, 2007 (the “Agreement”), is by and among
STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as depositor
(the “Depositor”), U.S. BANK NATIONAL ASSOCIATION, as trustee (the “Trustee”),
AURORA LOAN SERVICES LLC, as master servicer (the “Master Servicer”), XXXXX
FARGO BANK, N.A., as securities administrator (the “Securities Administrator”),
and XXXXXXX FIXED INCOME SERVICES INC., a Colorado corporation, as credit risk
manager (the “Credit Risk Manager”).
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, the Securities
Administrator and the Trustee herein with respect to the Mortgage Loans and
the
other property constituting the Trust Fund are for the benefit of the Holders
from time to time of the Certificates and, to the extent provided herein, any
NIMS Insurer, the Cap Counterparty and the Swap Counterparty. The Depositor,
the
Trustee, the Master Servicer, the Securities Administrator and the Credit Risk
Manager 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, an election shall be made that the Trust Fund (exclusive of
(i)
the Swap Agreement, (ii) the Swap Account, (iii) the right to receive and the
obligation to pay Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, (iv)
the Basis Risk Reserve Fund, (v) the Supplemental Interest Trust, (vi) the
right
to receive FPD Premiums (vii) the obligation to pay Class I Shortfalls (viii)
the Interest Rate Cap Agreement, (ix) the Interest Rate Cap Account and (x)
any
Servicer Prepayment Premium Payment Amounts or amounts in respect of Prepayment
Premiums paid by the Seller as a result of a breach of a representation or
warranty pursuant to Section 2.03(b) (collectively, the “Excluded Trust
Assets”)) be treated for federal income tax purposes as comprising four real
estate mortgage investment conduits under Section 860D of the Code (each a
“REMIC” or, in the alternative “REMIC 1,” “REMIC 2,” “REMIC 3,” and “REMIC 4”
(REMIC 4 also being referred to as the “Upper Tier REMIC”)). Any inconsistencies
or ambiguities in this Agreement or in the administration of this Agreement
shall be resolved in a manner that preserves the validity of such REMIC
elections.
Each
Certificate, other than the Class R and Class LT-R Certificates, represents
ownership of a regular interest in the Upper Tier REMIC for purposes of the
REMIC Provisions. In addition, each Certificate, other than the Class R, Class
LT-R, Class X and Class P Certificates, represents (i) the right to receive
payments with respect to any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls and (ii) the obligation to pay Class I Shortfalls. The Class LT-R
Certificate represents ownership of the sole Class of residual interest in
REMIC 1. The Class R Certificate represents ownership of the sole Class of
residual interest in each of REMIC 2, REMIC 3, and the Upper Tier REMIC for
purposes of the REMIC Provisions.
The
Upper
Tier REMIC shall hold as its assets the uncertificated Lower Tier Interests
in
REMIC 3, other than the Class LT3-R interest, and each such Lower Tier Interest
is hereby designated as a regular interest in REMIC 3 for purposes of the REMIC
Provisions. REMIC 3 shall hold as its assets the uncertificated Lower Tier
Interests in REMIC 2, other than the Class LT2-R interest, and each such
Lower Tier Interest is hereby designated as a regular interest in REMIC 2.
REMIC 2 shall hold as its assets the uncertificated Lower Tier Interests in
REMIC 1, and each such Lower Tier Interest is hereby designated as a regular
interest in REMIC 1. REMIC 1 shall hold as its assets the property of the Trust
Fund other than the Lower Tier Interests in REMIC 1, REMIC 2, and REMIC 3
and the Excluded Trust Assets.
The
startup day for each REMIC created hereby for purposes of the REMIC Provisions
is the Closing Date. In addition, for purposes of the REMIC Provisions, the
latest possible maturity date for each regular interest in each REMIC created
hereby is the Latest Possible Maturity Date.
REMIC
1:
REMIC
1
shall issue one uncertificated interest in respect of each Mortgage Loan held
by
the Trust Fund on the Closing Date, each of which is hereby designated as a
regular interest in REMIC 1 (the “REMIC 1 Regular Interests”). REMIC 1 shall
also issue the Class LT-R Certificate, which shall represent the sole class
of
residual interest in REMIC 1. Each 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 Qualifying
Substitute Mortgage Loan is substituted for such Mortgage Loan (the “Original
Mortgage Loan”), no amount of interest payable on such Qualifying Substitute
Mortgage Loan shall be distributed on such REMIC 1 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 REMIC
1 all expenses of the Trust Fund for such Distribution Date, other than any
expenses in respect of the Swap Agreement.
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 REMIC 1 based on the above-described
interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount among the Lower Tier Interests in REMIC 1 in accordance with
the amount of the Principal Remittance Amount attributable to the Mortgage
Loan
corresponding to each such Lower Tier Interest in REMIC 1. All losses on the
Mortgage Loans shall be allocated among the Lower Tier Interests in REMIC 1
in
the same manner that principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums
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 Lower Tier Interest in REMIC 1
corresponding to the Mortgage Loan with respect to which such amounts were
received.
2
REMIC
2:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 2, each of which (other than the Class LT2-R
Lower Tier Interest) is hereby designated as a regular interest in REMIC
2 (the
“REMIC 2 Regular Interests”):
|
Designation
|
Initial Principal Balance
|
Interest
Rate
|
|
LT2-A
|
$ 21,198,319.34
|
(1)
|
|
LT2-F1
|
$ 6,533,500.00
|
(2)
|
|
LT2-V1
|
$ 6,533,500.00
|
(3)
|
|
LT2-F2
|
$ 6,339,500.00
|
(2)
|
|
LT2-V2
|
$ 6,339,500.00
|
(3)
|
|
LT2-F3
|
$ 6,153,500.00
|
(2)
|
|
LT2-V3
|
$ 6,153,500.00
|
(3)
|
|
LT2-F4
|
$ 5,971,000.00
|
(2)
|
|
LT2-V4
|
$ 5,971,000.00
|
(3)
|
|
LT2-F5
|
$ 5,795,000.00
|
(2)
|
|
LT2-V5
|
$ 5,795,000.00
|
(3)
|
|
LT2-F6
|
$ 5,623,500.00
|
(2)
|
|
LT2-V6
|
$ 5,623,500.00
|
(3)
|
|
LT2-F7
|
$ 5,457,500.00
|
(2)
|
|
LT2-V7
|
$ 5,457,500.00
|
(3)
|
|
LT2-F8
|
$ 5,296,000.00
|
(2)
|
|
LT2-V8
|
$ 5,296,000.00
|
(3)
|
|
LT2-F9
|
$ 5,139,500.00
|
(2)
|
|
LT2-V9
|
$ 5,139,500.00
|
(3)
|
|
LT2-F10
|
$ 4,988,000.00
|
(2)
|
|
LT2-V10
|
$ 4,988,000.00
|
(3)
|
|
LT2-F11
|
$ 4,862,000.00
|
(2)
|
|
LT2-V11
|
$ 4,862,000.00
|
(3)
|
|
LT2-F12
|
$ 6,025,500.00
|
(2)
|
|
LT2-V12
|
$ 6,025,500.00
|
(3)
|
|
LT2-F13
|
$ 5,979,500.00
|
(2)
|
|
LT2-V13
|
$ 5,979,500.00
|
(3)
|
|
LT2-F14
|
$ 5,912,000.00
|
(2)
|
|
LT2-V14
|
$ 5,912,000.00
|
(3)
|
|
LT2-F15
|
$ 5,865,500.00
|
(2)
|
|
LT2-V15
|
$ 5,865,500.00
|
(3)
|
|
LT2-F16
|
$ 5,752,500.00
|
(2)
|
|
LT2-V16
|
$ 5,752,500.00
|
(3)
|
|
LT2-F17
|
$ 5,684,500.00
|
(2)
|
|
LT2-V17
|
$ 5,684,500.00
|
(3)
|
3
|
Designation
|
Initial Principal Balance
|
Interest
Rate
|
|
LT2-F18
|
$ 5,570,500.00
|
(2)
|
|
LT2-V18
|
$ 5,570,500.00
|
(3)
|
|
LT2-F19
|
$ 5,479,500.00
|
(2)
|
|
LT2-V19
|
$ 5,479,500.00
|
(3)
|
|
LT2-F20
|
$ 5,366,000.00
|
(2)
|
|
LT2-V20
|
$ 5,366,000.00
|
(3)
|
|
LT2-F21
|
$ 5,229,500.00
|
(2)
|
|
LT2-V21
|
$ 5,229,500.00
|
(3)
|
|
LT2-F22
|
$ 5,093,000.00
|
(2)
|
|
LT2-V22
|
$ 5,093,000.00
|
(3)
|
|
LT2-F23
|
$ 17,598,500.00
|
(2)
|
|
LT2-V23
|
$ 17,598,500.00
|
(3)
|
|
LT2-F24
|
$ 9,458,500.00
|
(2)
|
|
LT2-V24
|
$ 9,458,500.00
|
(3)
|
|
LT2-F25
|
$ 8,253,500.00
|
(2)
|
|
LT2-V25
|
$ 8,253,500.00
|
(3)
|
|
LT2-F26
|
$ 6,275,500.00
|
(2)
|
|
LT2-V26
|
$ 6,275,500.00
|
(3)
|
|
LT2-F27
|
$ 4,911,000.00
|
(2)
|
|
LT2-V27
|
$ 4,911,000.00
|
(3)
|
|
LT2-F28
|
$ 3,888,000.00
|
(2)
|
|
LT2-V28
|
$ 3,888,000.00
|
(3)
|
|
LT2-F29
|
$ 3,115,000.00
|
(2)
|
|
LT2-V29
|
$ 3,115,000.00
|
(3)
|
|
LT2-F30
|
$ 2,546,500.00
|
(2)
|
|
LT2-V30
|
$ 2,546,500.00
|
(3)
|
|
LT2-F31
|
$ 2,069,000.00
|
(2)
|
|
LT2-V31
|
$ 2,069,000.00
|
(3)
|
|
LT2-F32
|
$ 1,705,500.00
|
(2)
|
|
LT2-V32
|
$ 1,705,500.00
|
(3)
|
|
LT2-F33
|
$ 1,614,000.00
|
(2)
|
|
LT2-V33
|
$ 1,614,000.00
|
(3)
|
|
LT2-F34
|
$ 1,523,500.00
|
(2)
|
|
LT2-V34
|
$ 1,523,500.00
|
(3)
|
|
LT2-F35
|
$ 1,455,000.00
|
(2)
|
|
LT2-V35
|
$ 1,455,000.00
|
(3)
|
|
LT2-F36
|
$ 1,387,500.00
|
(2)
|
|
LT2-V36
|
$ 1,387,500.00
|
(3)
|
|
LT2-F37
|
$ 1,318,500.00
|
(2)
|
|
LT2-V37
|
$ 1,318,500.00
|
(3)
|
|
LT2-F38
|
$ 1,250,500.00
|
(2)
|
|
LT2-V38
|
$ 1,250,500.00
|
(3)
|
|
LT2-F39
|
$ 1,205,000.00
|
(2)
|
|
LT2-V39
|
$ 1,205,000.00
|
(3)
|
4
|
Designation
|
Initial Principal Balance
|
Interest
Rate
|
|
LT2-F40
|
$ 1,114,500.00
|
(2)
|
|
LT2-V40
|
$ 1,114,500.00
|
(3)
|
|
LT2-F41
|
$ 1,091,000.00
|
(2)
|
|
LT2-V41
|
$ 1,091,000.00
|
(3)
|
|
LT2-F42
|
$ 1,023,000.00
|
(2)
|
|
LT2-V42
|
$ 1,023,000.00
|
(3)
|
|
LT2-F43
|
$ 978,000.00
|
(2)
|
|
LT2-V43
|
$ 978,000.00
|
(3)
|
|
LT2-F44
|
$ 932,500.00
|
(2)
|
|
LT2-V44
|
$ 932,500.00
|
(3)
|
|
LT2-F45
|
$ 863,500.00
|
(2)
|
|
LT2-V45
|
$ 863,500.00
|
(3)
|
|
LT2-F46
|
$ 841,500.00
|
(2)
|
|
LT2-V46
|
$ 841,500.00
|
(3)
|
|
LT2-F47
|
$ 795,500.00
|
(2)
|
|
LT2-V47
|
$ 795,500.00
|
(3)
|
|
LT2-F48
|
$ 773,000.00
|
(2)
|
|
LT2-V48
|
$ 773,000.00
|
(3)
|
|
LT2-F49
|
$ 705,000.00
|
(2)
|
|
LT2-V49
|
$ 705,000.00
|
(3)
|
|
LT2-F50
|
$ 682,500.00
|
(2)
|
|
LT2-V50
|
$ 682,500.00
|
(3)
|
|
LT2-F51
|
$ 659,000.00
|
(2)
|
|
LT2-V51
|
$ 659,000.00
|
(3)
|
|
LT2-F52
|
$ 614,000.00
|
(2)
|
|
LT2-V52
|
$ 614,000.00
|
(3)
|
|
LT2-F53
|
$ 591,000.00
|
(2)
|
|
LT2-V53
|
$ 591,000.00
|
(3)
|
|
LT2-F54
|
$ 568,500.00
|
(2)
|
|
LT2-V54
|
$ 568,500.00
|
(3)
|
|
LT2-F55
|
$ 523,000.00
|
(2)
|
|
LT2-V55
|
$ 523,000.00
|
(3)
|
|
LT2-F56
|
$ 523,000.00
|
(2)
|
|
LT2-V56
|
$ 523,000.00
|
(3)
|
|
LT2-F57
|
$ 477,500.00
|
(2)
|
|
LT2-V57
|
$ 477,500.00
|
(3)
|
|
LT2-F58
|
$ 454,500.00
|
(2)
|
|
LT2-V58
|
$ 454,500.00
|
(3)
|
|
LT2-F59
|
$ 443,500.00
|
(2)
|
|
LT2-V59
|
$ 443,500.00
|
(3)
|
|
LT2-F60
|
$ 416,000.00
|
(2)
|
|
LT2-V60
|
$ 416,000.00
|
(3)
|
|
LT2-F61
|
$ 395,500.00
|
(2)
|
5
|
Designation
|
Initial Principal Balance
|
Interest
Rate
|
|
LT2-V61
|
$ 395,500.00
|
(3)
|
|
LT2-F62
|
$ 376,000.00
|
(2)
|
|
LT2-V62
|
$ 376,000.00
|
(3)
|
|
LT2-F63
|
$ 357,500.00
|
(2)
|
|
LT2-V63
|
$ 357,500.00
|
(3)
|
|
LT2-F64
|
$ 340,000.00
|
(2)
|
|
LT2-V64
|
$ 340,000.00
|
(3)
|
|
LT2-F65
|
$ 322,500.00
|
(2)
|
|
LT2-V65
|
$ 322,500.00
|
(3)
|
|
LT2-F66
|
$ 307,500.00
|
(2)
|
|
LT2-V66
|
$ 307,500.00
|
(3)
|
|
LT2-F67
|
$ 291,500.00
|
(2)
|
|
LT2-V67
|
$ 291,500.00
|
(3)
|
|
LT2-F68
|
$ 278,000.00
|
(2)
|
|
LT2-V68
|
$ 278,000.00
|
(3)
|
|
LT2-F69
|
$ 263,500.00
|
(2)
|
|
LT2-V69
|
$ 263,500.00
|
(3)
|
|
LT2-F70
|
$ 250,500.00
|
(2)
|
|
LT2-V70
|
$ 250,500.00
|
(3)
|
|
LT2-F71
|
$ 4,825,500.00
|
(2)
|
|
LT2-V71
|
$ 4,825,500.00
|
(3)
|
|
LT2-R
|
(4)
|
(4)
|
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for the Class LT2-A Interest shall be the Net WAC Rate.
|
|
(2)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these REMIC 2 Regular Interests shall be the lesser
of (i) the
REMIC Swap Rate for such Distribution Date, and (ii) the product
of (a)
the Net WAC Rate multiplied by (b) 2.
|
|
(3)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these REMIC 2 Regular Interests shall be the excess,
if any,
of (i) the product of (a) the Net WAC Rate multiplied by (b) 2,
over (ii)
the REMIC Swap Rate for such Distribution Date.
|
|
(4)
|
The
Class LT2-R interest shall not have a principal amount and shall
not bear
interest. The Class LT2-R interest is hereby designated as the
sole class
of residual interest in REMIC 2.
|
On
each Distribution Date, the Trustee shall distribute the aggregate Interest
Remittance Amount for the two Mortgage Pools (net of the expenses paid by
REMIC
1) with respect to each of the REMIC 2 Regular Interests based on the
above-described interest rates.
On
each Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount with respect to the two Mortgage Pools with respect to
the
REMIC
2
Regular Interests,
first to the Class LT2-A Interest until its principal balance is reduced
to
zero, and then sequentially, to the other REMIC 2 Regular Interests in ascending
order of their numerical class designation, and, with respect to each pair
of
classes having the same numerical designation, in equal amounts to each such
class, until the principal balance of each such class is reduced to zero.
All
losses on the Mortgage Loans shall be allocated among the REMIC 2 Regular
Interests in the same manner that principal distributions are
allocated.
6
On
each Distribution Date, the Trustee shall distribute the Prepayment Premiums
collected during the preceding Prepayment Period, to the Class LT2-F71 REMIC
2
Regular Interest.
REMIC
3:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 3, each of which (other than the Class LT3-R
interest) is hereby designated as a regular interest in REMIC 3 (the “REMIC 3
Regular Interests”):
|
REMIC
3
Lower
Tier
Class
Designation
|
REMIC
3
Lower
Tier
Interest
Rate
|
Initial Class
Principal Amount
|
Corresponding
Class of Certificate(s)
|
|
LT3-A1
|
(1)
|
$ 88,293,500.00
|
A1
|
|
LT3-A2
|
(1)
|
$ 36,339,000.00
|
A2
|
|
LT3-A3
|
(1)
|
$ 44,925,500.00
|
A3
|
|
LT3-A4
|
(1)
|
$ 5,061,000.00
|
A4
|
|
LT3-M1
|
(1)
|
$ 11,255,000.00
|
M1
|
|
LT3-M2
|
(1)
|
$ 5,229,500.00
|
M2
|
|
LT3-M3
|
(1)
|
$ 3,865,500.00
|
M3
|
|
LT3-M4
|
(1)
|
$ 3,865,500.00
|
M4
|
|
LT3-M5
|
(1)
|
$ 3,751,500.00
|
M5
|
|
LT3-M6
|
(1)
|
$ 3,297,000.00
|
M6
|
|
LT3-M7
|
(1)
|
$ 3,183,000.00
|
M7
|
|
LT3-M8
|
(1)
|
$ 3,297,000.00
|
M8
|
|
LT3-M9
|
(1)
|
$ 2,273,500.00
|
X0
|
|
XX0-X0
|
(1)
|
$ 1,932,500.00
|
X0
|
|
XX0-X0
|
(1)
|
$ 2,160,000.00
|
X0
|
|
XX0-X
|
(1)
|
$ 50.00
|
P
|
|
LT3-Q
|
(1)
|
$ 236,009,269.34
|
N/A
|
|
LT3-IO
|
(2)
|
(2)
|
N/A
|
|
LT3-R
|
(3)
|
(3)
|
R
|
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these REMIC 3 Regular Interests is a per annum rate
equal to
the weighted average of the interest rates on the REMIC 2 Regular
Interests for such Distribution Date, provided,
however, that
for any Distribution Date on which the Class LT3-IO Interest is
entitled
to a portion of the interest accruals on a REMIC 2 Regular Interest
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
REMIC 2 Regular Interest to a cap equal to Swap LIBOR for such
Distribution Date.
|
|
(2)
|
The
Class LT3-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 LT3-IO shall be entitled to interest
accrued on
the REMIC 2 Regular Interest listed in the second column in the
table
below at a per annum rate equal to the excess, if any, of (i) the
interest
rate for such REMIC 2 Regular Interest for such Distribution Date
over
(ii) Swap LIBOR for such Distribution
Date.
|
7
|
Distribution
Dates
|
REMIC
2
Class Designation
|
|
2
|
LT2-F1
|
|
2-3
|
LT2-F2
|
|
2-4
|
LT2-F3
|
|
2-5
|
LT2-F4
|
|
2-6
|
LT2-F5
|
|
2-7
|
LT2-F6
|
|
2-8
|
LT2-F7
|
|
2-9
|
LT2-F8
|
|
2-10
|
LT2-F9
|
|
2-11
|
LT2-F10
|
|
2-12
|
LT2-F11
|
|
2-13
|
LT2-F12
|
|
2-14
|
LT2-F13
|
|
2-15
|
LT2-F14
|
|
2-16
|
LT2-F15
|
|
2-17
|
LT2-F16
|
|
2-18
|
LT2-F17
|
|
2-19
|
LT2-F18
|
|
2-20
|
LT2-F19
|
|
2-21
|
LT2-F20
|
|
2-22
|
LT2-F21
|
|
2-23
|
LT2-F22
|
|
2-24
|
LT2-F23
|
|
2-25
|
LT2-F24
|
|
2-26
|
LT2-F25
|
|
2-27
|
LT2-F26
|
|
2-28
|
LT2-F27
|
|
2-29
|
LT2-F28
|
|
2-30
|
LT2-F29
|
|
2-31
|
LT2-F30
|
|
2-32
|
LT2-F31
|
|
2-33
|
LT2-F32
|
|
2-34
|
LT2-F33
|
|
2-35
|
LT2-F34
|
|
2-36
|
LT2-F35
|
|
2-37
|
LT2-F36
|
|
2-38
|
LT2-F37
|
|
2-39
|
LT2-F38
|
|
2-40
|
LT2-F39
|
|
2-41
|
LT2-F40
|
|
2-42
|
LT2-F41
|
|
2-43
|
LT2-F42
|
|
2-44
|
LT2-F43
|
|
2-45
|
LT2-F44
|
|
2-46
|
LT2-F45
|
|
2-47
|
LT2-F46
|
|
2-48
|
LT2-F47
|
|
2-49
|
LT2-F48
|
|
2-50
|
LT2-F49
|
|
2-51
|
LT2-F50
|
|
2-52
|
LT2-F51
|
8
|
2-53
|
LT2-F52
|
|
2-54
|
LT2-F53
|
|
2-55
|
LT2-F54
|
|
2-56
|
LT2-F55
|
|
2-57
|
LT2-F56
|
|
2-58
|
LT2-F57
|
|
2-59
|
LT2-F58
|
|
2-60
|
LT2-F59
|
|
2-61
|
LT2-F60
|
|
2-62
|
LT2-F61
|
|
2-63
|
LT2-F62
|
|
2-64
|
LT2-F63
|
|
2-65
|
LT2-F64
|
|
2-66
|
LT2-F65
|
|
2-67
|
LT2-F66
|
|
2-68
|
LT2-F67
|
|
2-69
|
LT2-F68
|
|
2-70
|
LT2-F69
|
|
2-71
|
LT2-F70
|
|
2-72
|
LT2-F71
|
|
(3)
|
The
LT3-R interest is the sole class of residual interests in REMIC
3. It does
not have an interest rate or a principal
balance.
|
On
each Distribution Date, interest shall be distributed on the REMIC 3 Regular
Interests based on the above-described interest rates,
provided, however,
that interest that accrues on the LT3-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 LT3-Q Interest. An amount equal to the interest
so
deferred shall be distributed as additional principal on the other REMIC
3
Regular Interests having a principal balance in the manner described under
priority (a) below.
On
each Distribution Date principal shall be distributed, and Realized Losses
shall
be allocated, among the REMIC 3 Regular Interests in the following order
of
priority:
(a)
First, to each REMIC 3 Regular Interest, other than the LT3-Q Interest, until
the principal balance of each REMIC 3 Regular 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 LT3-Q Interest, any remaining amounts.
On
each Distribution Date, the Trustee shall be deemed to have distributed the
Prepayment Premiums passed through with respect to the LT2-F71 REMIC 2 Regular
Interest on such Distribution Date to the Class LT3-P Interest.
The
Certificates:
The
following table sets forth (or describes) the Class designation, Certificate
Interest Rate, initial Class Principal Amount and minimum denomination for
each
Class of Certificates comprising interests in the Trust Fund created hereunder.
9
|
Class
Designation
|
Certificate
Interest
Rate
|
Initial
Class
Principal Amount
|
Minimum
Denomination
|
|
Class
A1
|
(1)
|
$176,587,000
|
$
25,000
|
|
Class
A2
|
(2)
|
$ 72,678,000
|
$
25,000
|
|
Class
A3
|
(3)
|
$ 89,851,000
|
$
25,000
|
|
Class
A4
|
(4)
|
$ 10,122,000
|
$
25,000
|
|
Class
M1
|
(5)
|
$ 22,510,000
|
$100,000
|
|
Class
M2
|
(6)
|
$ 10,459,000
|
$100,000
|
|
Class
M3
|
(7)
|
$ 7,731,000
|
$100,000
|
|
Class
M4
|
(8)
|
$ 7,731,000
|
$100,000
|
|
Class
M5
|
(9)
|
$ 7,503,000
|
$100,000
|
|
Class
M6
|
(10)
|
$ 6,594,000
|
$100,000
|
|
Class
M7
|
(11)
|
$ 6,366,000
|
$100,000
|
|
Class
M8
|
(12)
|
$ 6,594,000
|
$100,000
|
|
Class
M9
|
(13)
|
$ 4,547,000
|
$100,000
|
|
Class
B1
|
(14)
|
$ 3,865,000
|
$100,000
|
|
Class
B2
|
(15)
|
$ 4,320,000
|
$100,000
|
|
Class
X
|
(16)
|
(16)
|
10%
|
|
Class
R
|
(17)
|
(17)
|
100%
|
|
Class
P
|
(18)
|
$ 100 (19)
|
10%
|
|
Class
LT-R
|
(20)
|
(20)
|
100%
|
|
(1)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.000% and (ii) with
respect to
any Distribution Date on which the Class Principal Amounts of the
Group 2
Senior Certificates are outstanding, the Pool 1 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amounts of the Group 2 Senior Certificates are reduced
to zero,
the Subordinate Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the 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 A1 Certificates
will be LIBOR plus 2.000%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A1 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on
the Class
A1 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A1 Certificates if the REMIC 3
Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A1 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(2)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.700% and (ii) with
respect to
any Distribution Date on which the Class Principal Amount of the
Group 1
Senior Certificates are outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amount of the Group 1 Senior Certificates has been reduced
to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the 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 A2 Certificates
will be LIBOR plus 1.400%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A2 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on
the Class
A2 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A2 Certificates if the REMIC 3
Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A2 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
10
|
(3)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.900% and (ii) with
respect to
any Distribution Date on which the Class Principal Amount of the
Group 1
Senior Certificates are outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amount of the Group 1 Senior Certificates has been reduced
to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the 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 A3 Certificates
will be LIBOR plus 1.800%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A3 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on
the Class
A3 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A3 Certificates if the REMIC 3
Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A3 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(4)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.050% and (ii) with
respect to
any Distribution Date on which the Class Principal Amount of the
Group 1
Senior Certificates are outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amount of the Group 1 Senior Certificates has been reduced
to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the 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 A4 Certificates
will be LIBOR plus 2.100%. For purposes of the REMIC Provisions,
the
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A4 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on
the Class
A4 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A4 Certificates if the REMIC 3
Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A4 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(5)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.250% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the 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 M1 Certificates
will be LIBOR plus 3.375%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M1 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M1 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M1
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M1 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
|
11
|
(6)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the 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 M2 Certificates
will be LIBOR plus 3.000%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M2 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M2 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M2
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M2 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(7)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the 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 M3 Certificates
will be LIBOR plus 3.000%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M3 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M3 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M3
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M3 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(8)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the 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 M4 Certificates
will be LIBOR plus 3.000%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M4 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M4 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M4
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M4 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(9)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M5 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the 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 M5 Certificates
will be LIBOR plus 3.000%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M5 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M5 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M5
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M5 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
|
12
|
(10)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M6 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the 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 M6 Certificates
will be LIBOR plus 3.000%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M6 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M6 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M6
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M6 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(11)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M7 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the 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 M7 Certificates
will be LIBOR plus 3.000%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M7 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M7 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M7
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M7 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(12)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M8 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the 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 M8 Certificates
will be LIBOR plus 3.000%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M8 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M8 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M8
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M8 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
13
|
(13)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M9 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the 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 M9 Certificates
will be LIBOR plus 3.000%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M9 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M9 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M9
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M9 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(14)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class B1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the 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 B1 Certificates
will be LIBOR plus 3.000%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class B1 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class B1 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
B1
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class B1 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(15)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class B2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the 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 B2 Certificates
will be LIBOR plus 3.000%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class B2 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class B2 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
B2
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class B2 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(16)
|
For
purposes of the REMIC Provisions, the Class X Certificates shall
have an
initial principal balance of $17,280,219.34, and the right to receive
distributions of such amount represents a regular interest in the
Upper
Tier REMIC. The Class X Certificates shall also comprise two notional
components, each of which represents a regular interest in the
Upper Tier
REMIC. The first such component has a notional balance that will
at all
times equal the aggregate of the Class Principal Amounts of the
REMIC 3
Regular Interests, 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) (a) the weighted average
of the
interest rates on the Lower Tier Interests in REMIC 3 (other than
any
interest-only regular interest) minus (b) the Credit Risk Manager’s Fee
Rate, over (ii) the Adjusted Lower Tier WAC. The second notional
component
represents the right to receive all distributions in respect of
the Class
LT3-IO Interest in REMIC 3 (the “Class LT4-I” interest). In addition, for
purposes of the REMIC Provisions, the Class X Certificate shall
represent
beneficial ownership of (i) the Basis Risk Reserve Fund; (ii) the
Supplemental Interest Trust, including the Swap Agreement, the
Swap
Account, the Cap Agreement and the Cap Account, (iii) any FPD Premiums
and
(iv) an interest in the notional principal contracts described
in Section
10.01(n) hereof.
|
14
|
(17)
|
The
Class R Certificate will be issued without a Class Principal Amount
and
will not bear interest at a stated rate. The Class R Certificate
represents ownership of the residual interest in the Upper Tier
REMIC, as
well as ownership of the Class LT2-R Interest and Class LT3-R Interest.
The Class R Certificate will be issued as a single Certificate
evidencing
the entire Percentage Interest in such
Class.
|
|
(18)
|
The
Class P Certificates shall not bear interest at a stated rate.
Prepayment
Premiums paid with respect to the Mortgage Loans shall be paid
to the
Holders of the Class P Certificates as provided in Section 5.02(i).
For
purposes of the REMIC Provisions, Class P shall represent a regular
interest in the Upper Tier REMIC.
|
|
(19)
|
The
Class P Certificates will have an initial Class P Principal Amount
of
$100.
|
|
(20)
|
The
Class LT-R Certificate will be issued without a Class Principal
Amount and
will not bear interest at a stated rate. The Class LT-R Certificate
represents ownership of the residual interest in REMIC 1. The Class
LT-R
Certificate will be issued as a single Certificate evidencing the
entire
Percentage Interest in such Class.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$ 454,738,319.34.
In
consideration of the mutual agreements herein contained, the Depositor, the
Seller, the Credit Risk Manager, the Master Servicer, the Securities
Administrator and the Trustee hereby agree as follows:
15
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
The
following words and phrases, unless the context otherwise requires, shall
have
the following meanings:
10-K
Filing Deadline:
As
defined in Section 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 Securities Administrator (as successor to the
Master
Servicer) or the Master Servicer, or (y) as provided in the Servicing Agreement,
to the extent applicable to the 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 each Class of LIBOR Certificates and any Distribution Date,
the
period beginning on the Distribution Date in the calendar month immediately
preceding the month in which the related Distribution Date occurs (or,
in the
case of the first Accrual Period, beginning on August 25, 2007) and ending
on
the day immediately preceding the related Distribution Date, as calculated
in
accordance with Section 1.03. With respect to each Class of Lower Tier
Interests
and any Distribution Date, the calendar month preceding such Distribution
Date.
Act:
As
defined in Section 3.03(c).
Additional
Collateral:
None.
Additional
Form 10-D Disclosure:
As
defined in Section 6.20(d)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 6.20(e)(i).
Additional
Servicer:
Each
Affiliate of the Servicer that Services any of the Mortgage Loans and each
Person who is not an Affiliate of the Servicer, who Services 10% or more
of the
Mortgage Loans.
Additional
Termination Event:
As
defined in the Swap Agreement.
Adjustable
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for the adjustment
of the Mortgage Rate applicable thereto.
16
Adjusted
Lower Tier 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 the Class LT3-A1, Class LT3-A2, Class LT3-A3, Class
LT3-A4, Class LT3-M1, Class LT3-M2, Class LT3-M3, Class LT3-M4, Class LT3-M5,
Class LT3-M6, Class LT3-M7, Class LT3-M8, Class LT3-M9, Class LT3-B1, Class
LT3-B2, Class LT3-P and Class LT3-Q Interests, 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 LT3-Q and Class LT3-P Interests
to
a cap of 0.00%, and by subjecting the rate on each of the Class LT3-A1,
Class
LT3-A2, Class LT3-A3, Class LT3-A4, Class LT3-M1, Class LT3-M2, Class LT3-M3,
Class LT3-M4, Class LT3-M5, Class LT3-M6, Class LT3-M7, Class LT3-M8, Class
LT3-M9, Class LT3-B1 and Class LT3-B2 Interests to a cap that corresponds
to the
Certificate Interest Rate (determined by substituting the REMIC 3 Net Funds
Cap
for the applicable Net Funds Cap) for the Corresponding Class of Certificates
multiplied by the quotient of (a) the actual number of days in the Accrual
Period, divided by (b) 30.
Advance:
With
respect to a Mortgage Loan other than a Simple Interest Mortgage Loan,
an
advance of the aggregate of payments (other than Balloon Payments) of principal
and interest (net of the Servicing Fee) on one or more Mortgage Loans that
were
due on a 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 or
on behalf of the Master Servicer and the Servicer (or by the Securities
Administrator as successor to the Master Servicer) pursuant to Section
5.04, but
only to the extent that such amount is expected, in the reasonable judgment
of
the Master Servicer or Servicer (or by the Securities Administrator as
successor
to the Master Servicer), to be recoverable from collections or recoveries
in
respect of such Mortgage Loans. With respect to a Simple Interest Mortgage
Loan,
an advance of an amount equal to the interest accrual on such Simple Interest
Mortgage Loan through the related Due Date but not received as of the close
of
business on the related Distribution Date (net of the Servicing Fee) required
to
be made by or on behalf of the Master Servicer or the Servicer (or by the
Securities Administrator as successor to the Master Servicer) pursuant
to
Section 5.04, but only to the extent that such amount is expected, in the
reasonable judgment of the Master Servicer or Servicer (or by the Securities
Administrator as successor to the Master Servicer), to be recoverable from
collections or recoveries in respect of such Simple Interest Mortgage
Loans.
Adverse
REMIC Event:
Either
(i) the 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) the 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.
17
Aggregate
Overcollateralization Release Amount:
With
respect to any Distribution Date, the lesser of (x) the aggregate of the
Principal Remittance Amounts for each Mortgage Pool for such Distribution
Date
and (y) the amount, if any, by which (i) the Overcollateralization Amount
for
such date, calculated for this purpose on the basis of the assumption that
100%
of the aggregate of the Principal Remittance Amounts for such Distribution
Date
is applied on such date in reduction of the aggregate Class Principal Amount
of
the LIBOR Certificates, exceeds (ii) the Targeted Overcollateralization
Amount
for such Distribution Date.
Aggregate
Pool Balance:
As of
any date of determination, the aggregate of the Pool Balances of Pool 1
and Pool
2 on such date.
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 Amount:
With
respect to any Distribution Date, after giving effect to all Realized Losses
incurred with respect to the Mortgage Loans during the related Collection
Period
and distributions of principal on such Distribution Date, the amount by
which
the aggregate Class Principal Amount of the LIBOR Certificates exceeds
the
Aggregate Pool Balance for such Distribution Date.
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
neither the Custodian nor the Trustee shall be responsible for determining
whether any such assignment is in recordable form.
Aurora:
Aurora
Loan Services LLC.
Authenticating
Agent:
Any
authenticating agent appointed by the Trustee pursuant to Section
6.10.
18
Authorized
Officer:
Any
Person who may execute an Officer’s Certificate on behalf of the
Depositor.
B1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
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 of the Class
Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3,
Class
M4, Class M5, Class M6, Class M7, Class M8 and Class M9 Certificates, in
each
case after giving effect to distributions on such Distribution Date and
(ii) the
Class Principal Amount of the Class B1 Certificates immediately prior to
such
Distribution Date exceeds (y) the B1 Target Amount.
B1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 90.50% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
B2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
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 of the Class
Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3,
Class
M4, Class M5, Class M6, Class M7, Class M8, Class M9 and Class B1 Certificates,
in each case after giving effect to distributions on such Distribution
Date and
(ii) the Class Principal Amount of the Class B2 Certificates immediately
prior
to such Distribution Date exceeds (y) the B2 Target Amount.
B2
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 92.40% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
Back-Up
Certification:
As
defined in Section 6.20(e)(iv).
Balloon
Mortgage Loan:
Any
Mortgage Loan that provides for (1) Scheduled Payments that will not reduce
the
Scheduled Principal Balance of the Mortgage Loan to zero at its maturity
date
and (2) a larger Scheduled Payment due at its maturity date equal to the
unpaid
Scheduled Principal Balance of the Mortgage Loan, with interest
thereon.
Balloon
Payment:
The
final Scheduled Payment in respect of a Balloon Mortgage Loan.
Bank:
Xxxxxx
Brothers Bank, FSB and its successors and assigns.
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.
19
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
Basis
Risk Payment:
With
respect to any Distribution Date, the sum of (i) any Basis Risk Shortfall
for
such Distribution Date, (ii) any Unpaid Basis Risk Shortfall from previous
Distribution Dates and (iii) any Required Reserve Fund Deposit for such
Distribution Date. The amount of the Basis Risk Payment for any Distribution
Date cannot exceed the amount of Monthly Excess Cashflow otherwise available
for
distribution pursuant to Section 5.02(f)(iv) of this Agreement.
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.
Basis
Risk Shortfall:
With
respect to any Distribution Date and any Class of LIBOR Certificates, the
amount, if any, by which the amount of interest calculated at the Certificate
Interest Rate applicable to such Class for such date, determined without
regard
to the Pool 1 Net Funds Cap, Pool 2 Net Funds Cap or Subordinate Net Funds
Cap,
as applicable, for such date but subject to a cap equal to the applicable
Maximum Interest Rate, exceeds the amount of interest calculated at the
Pool 1
Net Funds Cap, Pool 2 Net Funds Cap or Subordinate Net Funds Cap, as
applicable.
BBA:
British
Bankers’ Association.
Benefit
Plan Opinion:
An
Opinion of Counsel satisfactory to the Depositor and the Trustee to the
effect
that any proposed transfer of Certificates 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, respectively.
Bid
Due Date:
As
defined in Section 7.01(d).
Bid
Holder:
As
defined in Section 7.01(d).
Bid
Month:
As
defined in Section 7.01(d).
Bid
Price:
As
defined in Section 7.01(d).
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 LIBOR Certificates
constitutes Book-Entry Certificates.
20
Bulk
PMI Policy:
Not
applicable.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in New York, New York or, if other than New York or the city in which the
principal office of the Corporate Trust Office of the Trustee is located,
or the
States of Colorado, Maryland, Massachusetts or Minnesota are closed, or
(iii)
with respect to any Servicer Remittance Date or any Servicer reporting
date, the
States specified in the definition of “Business Day” in the Servicing Agreement,
are authorized or obligated by law or executive order to be closed.
Call
Option Holder:
At any
date of determination, each holder of any NIM Residual Securities (if any
such
NIM Residual Securities have been issued and are outstanding), or if no
NIM
Securities are outstanding, each Holder of a Class X Certificate.
Call
Option Notice:
As
defined in Section 7.01(d).
Cap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Interest Rate
Cap
Agreement, and any successor in interest or assigns. Initially, the Cap
Counterparty shall be Credit Suisse International.
Cap
Replacement Receipts:
As
defined in Section 5.09(b).
Cap
Replacement Receipts Account:
As
defined in Section 5.09(b).
Cap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Interest Rate
Cap Agreement, the payment required to be made by the Cap Counterparty
to the
Supplemental Interest Trust pursuant to the terms of the Interest Rate
Cap
Agreement, and any unpaid amounts due on previous Interest Rate Cap Payment
Dates and accrued interest thereon as provided in the Interest Rate Cap
Agreement, as calculated by the Cap Counterparty and furnished to the Trustee
and the Securities Administrator.
Cap
Termination Receipts:
As
defined in Section 5.09(b).
Cap
Termination Receipts Account:
As
defined in Section 5.09(b).
Carryforward
Interest:
With
respect to any Class of LIBOR Certificates and any Distribution Date, 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.
21
Certificate
Interest Rate:
With
respect to each Class of Certificates and any Distribution Date, the applicable
per annum rate set forth or described under the heading “The Certificates” 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 LIBOR Certificate, the initial Certificate Principal Amount
thereof on the Closing Date, less the amount of all principal distributions
previously distributed with respect to such Certificate and, in the case
of the
Subordinate Certificates, any Applied Loss Amount previously allocated
to such
Certificate; provided,
however,
that on
each Distribution Date on which a Subsequent Recovery is distributed, the
Certificate Principal Amount of any Class of Subordinate Certificates whose
Certificate Principal Amount has previously been reduced by application
of
Applied Loss Amounts will be increased, sequentially, 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 Distribution Date and (2) the
total
amount of any Subsequent Recovery distributed on such Distribution Date
to
Certificateholders, after application for this purpose to any more senior
Classes of Certificates. The Class X, Class R and Class LT-R Certificates
are
issued without Certificate Principal Amounts. The Class P Certificates
are
issued with an initial Class P Principal Amount of $100.
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.”
Certification
Parties:
As
defined in Section 6.20(e)(iv).
Certifying
Person:
As
defined in Section 6.20(e)(iv).
Civil
Relief Act:
The
Servicemembers Civil Relief Act, as amended, or any similar state or local
statute.
Class:
All
Certificates, in the case of REMIC 4, all interests bearing the same class
designation, and, in the case of REMIC 1, REMIC 2 and REMIC 3, all Lower
Tier
Interests, bearing the same class designation.
Class
B Certificates:
Collectively, the Class B1 and Class B2 Certificates.
Class
I Shortfalls:
As
defined in Section 10.01(n) 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 LT4-I interest in the Upper Tier REMIC on such Distribution Date,
all as
further provided in Section 10.01(n) hereof.
22
Class
LT-R Certificate:
Each
Class LT-R 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 residual interest in REMIC
1.
Class
M Certificates:
Collectively, the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8 and Class M9 Certificates.
Class
M1 Enhancement Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is the sum of the aggregate Class Principal Amount of
the
Subordinate Certificates (other than the Class M1 Certificates) and the
Overcollateralization Amount for such Distribution Date (which, for purposes
of
this definition only, shall not be less than zero and assuming for purposes
of
this definition that no Trigger Event has occurred), and the denominator
of
which is the Aggregate Pool Balance for such Distribution Date, in each
case
after giving effect to distributions on such Distribution Date
Class
Notional Amount:
Not
applicable.
Class
P Principal Amount:
As of
the Closing Date, $100.
Class
Principal Amount:
With
respect to any Class of LIBOR Certificates and any date of determination,
the
aggregate of the Certificate Principal Amounts of all Certificates of such
Class
on such date. With respect to the Class P Certificates, the Class P Principal
Amount. With respect to the Class X, Class LT-R and Class R Certificates,
zero.
With respect to any Lower Tier Interest, the initial Class Principal Amount
as
shown or described in the table set forth in the Preliminary Statement
to this
Agreement for the issuing REMIC, as reduced by principal distributed with
respect to such Lower Tier Interest and Realized Losses allocated to such
Lower
Tier Interest.
Class
R Certificate:
Each
Class R 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 Class LT2-R Interest, Class LT3-R Interest
and the residual interest in the Upper Tier REMIC.
Class
X Distributable Amount:
With
respect to any Distribution Date, the amount of interest that has accrued
on the
Class X Notional Balance, as described in the Preliminary Statement, but
that
has not been distributed prior to such date. In addition, such amount shall
include the initial Overcollateralization Amount of $17,280,219.34
($17,280,319.34 less $100 of such amount allocated to the Class P Certificates)
to the extent such amount has not been distributed on an earlier Distribution
Date as part of the Aggregate Overcollateralization Release Amount.
Class
X Notional Balance:
With
respect to any Distribution Date (and the related Accrual Period) the aggregate
principal balance of the regular interests in REMIC 3 (other than Class
LT3-IO)
as specified in the Preliminary Statement hereto.
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.
23
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.
Clearstream:
Clearstream Banking Luxembourg, and any successor thereto.
Closing
Date:
August
30, 2007.
Code:
The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collateral
Account:
The
account maintained by the Trustee in accordance with the provisions of
Section
5.07(c).
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
calendar month immediately preceding the calendar month in which such
Distribution Date occurs and ending on the first day of the calendar month
in
which such Distribution Date occurs.
Commission
The
United States Securities and Exchange Commission.
Commitment
Letters:
The
Commitment Letter for WFHM 2007-M06, dated April 24, 2007, WFHM 2007-M08,
dated
May 24, 2007, and WFHM 2007-M10, dated June 20, 2007, each of Xxxxx Fargo
Bank,
N.A., as Seller, to Xxxxxx Brothers Bank, FSB, as Purchaser.
Compensating
Interest Payment:
With
respect to any Distribution Date and any Principal Prepayments in full
or in
part, an amount equal to the aggregate amount of any Prepayment Interest
Shortfalls required to be paid by the Servicer with respect to such Distribution
Date. The Master Servicer (solely in its capacity as Master Servicer) shall
not
be responsible for making any Compensating Interest Payment.
Controlling
Person:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
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:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
24
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
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 at which, at any particular
time, its corporate trust business with respect to this Agreement shall
be
administered, which office at the date hereof is located at Xxx Xxxxxxx
Xxxxxx,
0xx Xxxxx, Xxxxxx, XX 00000, Attention: Structured Finance - SASCO 2007-WF2;
provided that for purposes of surrender of the Certificates and final payment
thereon the Trustee’s Corporate Trust Office shall be 00 Xxxxxxxxxx Xxxxxx, Xx.
Xxxx, XX 00000, Attention: Structured Finance - SASCO 2007-WF2.
Corresponding
Class:
The
Class of Certificates that corresponds to a Class of interests in REMIC
3 or
REMIC 4, as provided in the Preliminary Statement.
Credit
Risk Management Agreement:
The
credit risk management agreement dated as of the Closing Date, entered
into by
the Servicer and the Credit Risk Manager, identified on Exhibit L attached
hereto.
Credit
Risk Manager:
Xxxxxxx
Fixed Income Services Inc., a Colorado corporation, and its successors
and
assigns.
Credit
Risk Manager’s Fee:
With
respect to any Distribution Date and each Mortgage Loan, an amount equal
to the
product of (a) one-twelfth, (b) the Credit Risk Manager’s Fee Rate and (c) the
Scheduled Principal Balance of such Mortgage Loan as of the first day of
the
related Collection Period.
Credit
Risk Manager’s Fee Rate:
0.009%
per annum.
Credit
Support Annex:
The
credit support annex to the Swap Agreement and Interest Rate Cap Agreement
dated
as of August 30, 2007, between the Trustee, on behalf of the Supplemental
Interest Trust, the Swap Counterparty and the Cap Counterparty.
25
Cumulative
Loss Trigger Event:
A
Cumulative Loss Trigger Event shall have occurred with respect to any
Distribution Date if the fraction, expressed as a percentage, obtained
by
dividing (x) the aggregate amount of cumulative Realized Losses incurred
on the
Mortgage Loans from the Cut-off Date through the last day of the related
Collection Period by (y) the Cut-off Date Balance exceeds the applicable
percentages described below with respect to such Distribution Date:
|
Distribution
Date
|
Loss
Percentage
|
|
September
2009 through August 2010
|
1.25%
for the first month, plus
an
additional 1/12th
of
1.60% for each month thereafter
|
|
September
2010 through August 2011
|
2.85%
for the first month, plus
an
additional 1/12th
of
1.65% for each month thereafter
|
|
September
2011 through August 2012
|
4.50%
for the first month, plus
an
additional 1/12th
of
1.35% for each month thereafter
|
|
September
2012 through August 2013
|
5.85%
for the first month, plus
an
additional 1/12th
of
0.75% for each month thereafter
|
|
September
2013 through August 2014
|
6.60%
for the first month, plus
an
additional 1/12th
of
0.10% for each month thereafter
|
|
September
2014 and thereafter
|
6.70%
|
Current
Interest:
With
respect to any Class of LIBOR Certificates 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 of such
Class
immediately prior to such Distribution Date.
Custodial
Account:
Any
custodial account (other than an Escrow Account) established and maintained
by
the Servicer pursuant to the Servicing Agreement.
Custodial
Agreement:
The
custodial agreement identified on Exhibit K hereto, and any custodial agreement
subsequently executed by the Trustee and acknowledged by the Master Servicer
substantially in the form thereof.
Custodial
Compensation:
The
transactional fees or charges (exclusive of the custodian acceptance fee
and
annual administration fee) and reimbursement of out-of-pocket expenses
paid to
or allowed the Custodian pursuant to the Custodial Agreement or any applicable
side letter.
Custodian:
The
Custodian appointed by the Trustee pursuant to the Custodial Agreement,
and any
successor thereto. The initial Custodian is Xxxxx Fargo Bank, N.A.
Cut-off
Date:
August
1, 2007
Cut-off
Date Balance:
The
Aggregate Pool Balance as of the Cut-off Date.
DBRS:
DBRS,
Inc.
26
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 Class of Subordinate Certificates,
the
amount by which (x) the aggregate of Applied Loss Amounts previously applied
in
reduction of the Class Principal Amount thereof exceeds (y) the sum of
(1) the
aggregate of amounts previously reimbursed in respect thereof and (2) the
amount
by which the Class Principal Amount of such Class has been increased due
to any
Subsequent Recovery.
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.
Delinquency
Event:
Any
Distribution Date on which the Rolling Three Month Delinquency Rate as
of the
last day of the immediately preceding calendar month equals or exceeds
(1)
34.45% of the Senior Enhancement Percentage for such Distribution Date
or (2)
with respect to any Distribution Date on or after the aggregate Class Principal
Amount of the Senior Certificate has been reduced to zero, 43.80% of the
Class
M1 Enhancement Percentage.
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 (i)
all
Mortgage Loans 60 days Delinquent or more (including all Mortgage Loans
60 days
Delinquent or more for which the Mortgagor has filed for Bankruptcy after
the
Closing Date), (ii) each Mortgage Loan in foreclosure and all REO Properties
as
of the close of business on the last day of such month, (iii) all Mortgage
Loans
repurchased within 12 months prior to the related Distribution Date and
(iv) all
Mortgage Loans modified within 12 months prior to the related Distribution
Date,
and the denominator of which is the Aggregate Pool Balance as of the close
of
business on the last day of such month (after giving effect to any Principal
Prepayments received during the related Prepayment Period).
Delinquent:
For
reporting purposes, a Mortgage Loan is considered “delinquent” if a monthly
payment has not been received by the close of business on the loan’s Due Date in
the following month. For example, if a borrower failed to make a monthly
payment
due on July 1 by July 31, that mortgage loan would be considered less than
30
days delinquent in payment. If a borrower failed to make a monthly payment
due
on June 1 by July 31, that mortgage loan would be considered to be at least
30
but less than 60 days delinquent in payment.
Deposit
Date:
With
respect to each Distribution Date, the Business Day immediately preceding
such
Distribution Date.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation having
its
principal place of business in New York, or its successors in
interest.
27
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 90 days or more without giving effect to any grace period permitted
by
the related Mortgage Note or for which the Servicer or the Trustee 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 September 2007.
Distribution
Date Statement:
As
defined in Section 4.03(a).
Document
Transfer Event:
The day
on which (i) Xxxxx Fargo Bank, N.A. or any successor thereto is no longer
the
Servicer of any of the Mortgage Loans, (ii) the senior, unsecured long-term
debt
rating of Xxxxx Fargo & Company is less than “BBB-” by Fitch or (iii) any
Rating Agency requires the Servicer to deliver the Retained Mortgage Files
to
the Custodian.
DTC:
The
Depository Trust Company, or any successor thereto.
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 which have been rated by each Rating
Agency in one of its two highest long-term and its highest short-term rating
categories, respectively, at the time any amounts are held on deposit therein,
provided,
that
following a downgrade, withdrawal, or suspension of such institution’s rating
below such ratings set forth above, each account shall promptly (and in
any case
within not more than 30 calendar days) be moved to an Eligible Account
or to one
or more segregated trust accounts in the trust department of such institution
which has the required ratings, or (ii) a segregated trust account or accounts
(which shall be a “special deposit account”) maintained with the Trustee, the
Securities Administrator or any other federal or state chartered depository
institution or trust company, acting in its fiduciary capacity, in a manner
acceptable to the Trustee, the Securities Administrator 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”);
28
(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;
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed
by
GNMA, FNMA or FHLMC 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
(a) one
of the two highest short-term credit rating categories of S&P and Xxxxx’x
and (b) the highest short-term rating category of Fitch; 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 Aggregate 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
29
(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 Securities Administrator or any Affiliate thereof), (A)
rated in
the highest rating category by each Rating Agency rating such investment
or (B)
that would not adversely affect the then current rating assigned by each
Rating
Agency of any of the Certificates or the NIM Securities and has a short
term
rating of at least “A-1” or its equivalent by each Rating Agency. Such
investments in this subsection (viii) may include money market mutual funds
or
common trust funds, including any fund for which U.S. Bank National Association
(the “Bank”) in its capacity other than as Trustee, the Trustee, the Master
Servicer, any NIMS Insurer, the Securities Administrator or an affiliate
thereof
serves as an investment advisor, administrator, shareholder servicing agent,
and/or custodian or subcustodian, notwithstanding that (x) the Bank, the
Trustee, the Master Servicer, any NIMS Insurer, the Securities Administrator
or
any affiliate thereof charges and collects fees and expenses from such
funds for
services rendered, (y) the Bank, the Trustee, the Master Servicer, any
NIMS
Insurer, the Securities Administrator 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. The Trustee specifically authorizes the Bank or an
affiliate thereof 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);
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 B, Class P, Class X, Class LT-R or Class R Certificate, and any Senior
Certificate or Class M Certificate which does not have a rating of BBB-
or
above, Baa3 or above or BBB (low) or above.
ERISA-Restricted
Trust Certificate:
Any
Senior Certificate or Class M Certificate.
Errors
and Omission Insurance Policy:
The
errors or omission insurance policy required to be obtained by the Servicer
satisfying the requirements of the Servicing Agreement.
Escrow
Account:
Any
account established and maintained by the Servicer pursuant to the Servicing
Agreement.
Euroclear:
Euroclear Bank, S.A./N.V., as operator of the Euroclear System.
30
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
Excluded
Trust Assets:
As
described in the Preliminary Statement.
Xxxxxx
Xxx or FNMA:
Xxxxxx
Mae, 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 the Servicer satisfying the
requirements of the Servicing Agreement.
Final
Scheduled Distribution Date:
With
respect to each Class of Certificates, the Distribution Date occurring
in August
2037.
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.
First
Payment Default Mortgage Loan:
Any
Mortgage Loans as to which the related Mortgagor does not make the first
payment
due to the Seller within the time frame required under the applicable Commitment
Letter and which are identified on Schedule B hereof.
Fitch:
Fitch
Ratings, Inc., or any successor in interest.
Fixed
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for a fixed
rate of
interest throughout the term of such Note.
Form
8-K Disclosure Information.
As
defined in Section 6.20(f)(i).
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
FPD
Premium:
With
respect to any First Payment Default Mortgage Loan, the excess, if any,
of the
FPD Purchase Price over the Purchase Price for such Mortgage Loan.
FPD
Purchase Price:
The
purchase price paid for a First Payment Default Mortgage Loan which is
required
to be repurchased by a Transferor pursuant to the related Commitment
Letter.
Xxxxxxx
Mac or FHLMC:
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.
31
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
GNMA:
The
Government National Mortgage Association, a wholly owned corporate
instrumentality of the United States within HUD.
Group:
The
Group 1 Senior Certificates or the Group 2 Senior Certificates, as the
context
requires.
Group
1 Senior Certificates:
The
Class A1 Certificates.
Group
2 Senior Certificates:
Collectively, the Class A2, Class A3 and Class A4 Certificates.
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, the Securities
Administrator, the Servicer or the Credit Risk Manager 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 and any NIMS Insurer may
request
and conclusively rely on certifications by the Depositor, the Master Servicer,
the Securities Administrator, the Servicer or the Credit Risk Manager in
determining whether any Certificates are registered to an Affiliate of
the
Depositor, the Master Servicer, the Securities Administrator, the Servicer
or
the Credit Risk Manager. After a Section 7.01(c) Purchase Event, other
than in
Sections 5.02(b) through (g) and 11.03(a) and (b) and, except in the case
of the
Class LT-R Certificates, Sections 3.03, 3.04, 3.05, 3.06, 3.07 and 3.09
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 Lower Tier Uncertificated REMIC
1
Regular Interests.
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, (c) is not connected with such other Person or any Affiliate
of
such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (d) is not
a member
of the immediate family of a Person defined in clause (b) or (c)
above.
Index:
The
index specified in the related Mortgage Note for calculation of the Mortgage
Rate thereof.
Initial
LIBOR Rate:
5.50500%.
32
Initial
Optional Termination Date:
The
first Distribution Date following the date on which the Aggregate Pool
Balance
is less than 10.00% of the Cut-off Date Balance.
Insurance
Fee Rate:
Not
applicable.
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 the Servicer or the 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.
Interest
Rate Cap Account:
The
account created pursuant to Section 5.07(b).
Interest
Rate Cap Agreement:
The
interest rate cap agreement (Ref. Id: 53284789N/447987293) dated August
30, 2007
entered into by the Trustee on behalf of the Supplemental Interest Trust
and the
Cap Counterparty, which agreement provides for the monthly payment specified
therein to the Trustee (for the benefit of the Certificateholders) commencing
with the Distribution Date in August 2008 and ending on the Distribution
Date in
August 2012, by the Cap Counterparty, but subject to the conditions set
forth
therein together with any schedules, confirmations, Credit Support Annex
or
other agreements relating thereto, attached hereto as Exhibit N.
Interest
Rate Cap Amount:
With
respect to each Distribution Date, the amount of any Interest Rate Cap
Payment
deposited into the Interest Rate Cap Account, and any investment earnings
thereon.
Interest
Rate Cap Payment:
With
respect to each Distribution Date, any payment required to be made by the
Cap
Counterparty to the Supplemental Interest Trust pursuant to the terms of
the
Interest Rate Cap Agreement.
Interest
Rate Cap Payment Date:
For so
long as the Interest Rate Cap Agreement is in effect or any amounts remain
unpaid thereunder, the Business Day immediately preceding each Distribution
Date.
Interest
Remittance Amount:
With
respect to any Distribution Date and each Mortgage Pool, an amount equal
to (a)
the sum of (1) all interest collected (other than Payaheads and Prepayment
Premiums) or advanced in respect of Scheduled Payments on the Mortgage
Loans in
such Mortgage Pool during the related Collection Period by the Servicer,
the
Master Servicer or the Securities Administrator (solely in its capacity
as
successor master servicer), minus
(w) the
PMI Insurance Premiums (if any) related to the Mortgage Loans in such Mortgage
Pool, (x) the Servicing Fee with respect to such Mortgage Loans in such
Mortgage
Pool and (y) previously unreimbursed Advances due to the Servicer, the
Master
Servicer or the Securities Administrator (solely 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 such Mortgage
Loans to the extent allocable to interest, (2) any amounts actually paid
by the
Servicer with respect to Compensating Interest Payments with respect to
such
Mortgage Loans and the related Prepayment Period, (3) the portion of any
Purchase Price (or FPD Purchase Price (excluding any FPD Premium) payable
with
respect to a First Payment Default Mortgage Loan in such Mortgage Pool)
or
Substitution Amount paid with respect to such Mortgage Loans during the
related
Prepayment Period allocable to interest and (4) all Net Liquidation
Proceeds, Insurance Proceeds, any Subsequent Recoveries and any other recoveries
collected with respect to such Mortgage Loans during the related Prepayment
Period, to the extent allocable to interest, for each Mortgage Pool,
as
reduced by
(b) the
product of (i) the applicable Pool Percentage for such Distribution Date
and
(ii) any other costs, expenses or liabilities reimbursable to the Trustee,
the
Master Servicer, the Securities Administrator, the Custodian and the Servicer
to
the extent provided in this Agreement, the Servicing Agreement and the
Custodial
Agreement; provided,
however,
that in
the case of the Trustee, such reimbursable amounts payable to the Trustee
pursuant to Section 4.04(b)(i) may not exceed $200,000 during any Anniversary
Year. In the event that the Trustee incurs reimbursable amounts in excess
of
$200,000, it may seek reimbursement for such amounts in subsequent Anniversary
Years, but in no event shall more than $200,000 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 from the $200,000 per Anniversary Year limit
on
reimbursable amounts. For the avoidance of doubt, (i) the Interest Remittance
Amount available on each Swap Payment Date for distributions to the Swap
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 Swap Account on the
related Swap Payment Date.
33
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notices of transfer or
equivalent instrument.
Latest
Possible Maturity Date:
The
Distribution Date occurring in August 2042.
LBH:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
LIBOR:
(a)
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 Securities Administrator
on
the basis of the “Interest Settlement Rate” set by the BBA for one-month United
States dollar deposits, as such rates appear on the Reuters Screen “LIBOR01,”,
as of 11:00 a.m. (London time) on such LIBOR Determination Date.
(b) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Reuters Screen “LIBOR01” as of 11:00 a.m. (London time), or is
otherwise not available on such date, the Securities Administrator will
obtain
such rate from Bloomberg’s L.P. page “US0001M.” If any such rate is not
published for such LIBOR Determination Date, LIBOR for such date will be
the
most recently published Interest Settlement Rate. In the event that the
BBA no
longer sets an Interest Settlement Rate, the Securities Administrator will
designate an alternative index that has performed, or that the Securities
Administrator expects to perform, in a manner substantially similar to
the BBA’s
Interest Settlement Rate. The Securities Administrator will select a particular
index as the alternative index only if it receives an Opinion of Counsel
(a copy
of which shall be furnished to the Trustee and 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.
34
(c) The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator’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
Class A1, Class A2, Class A3, Class A4, Class M1, Class M2, Class M3, Class
M4,
Class M5, Class M6, Class M7, Class M8, Class M9, Class B1 or Class B2
Certificate.
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each
Accrual
Period for any LIBOR Certificate.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Master Servicer or the 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 the Servicer in connection
with the liquidation of any defaulted Mortgage Loan, and are not recoverable
under the related 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.
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 or otherwise, or the
sale
of the related Mortgaged Property if the Mortgaged Property is acquired
in
satisfaction of the Mortgage Loan, including any amounts remaining in the
related Escrow Account.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan as of any determination date plus the principal
balance of each mortgage loan senior thereto based on the most recent
information available to the Seller, 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 Mortgaged Property.
Lower
Tier Interest:
As
described in the Preliminary Statement.
35
Lower
Tier REMIC 1 Uncertificated Regular Interests:
Lower
Tier Interests of REMIC 1 constituting regular interests held in uncertificated
form pursuant to a Section 7.01(c) Purchase Event.
LPMI
Policy:
A
Primary Mortgage Insurance Policy issued by a Qualified Insurer to which
the
related premium is to be paid from payments by the mortgagee.
LTURI-holder:
The
holder of Lower Tier REMIC 1 Uncertificated Regular Interests, which upon
the
occurrence of a Section 7.01(c) Purchase Event shall be the Master Servicer
or
its designee, and including any trustee in its capacity as trustee of any
privately placed securitization.
M1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
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 Senior Certificates after giving effect to distributions
on such
Distribution Date and (ii) the aggregate Class Principal Amount of the
Class M1
Certificates immediately prior to such Distribution Date exceeds (y) the
M1
Target Amount.
M1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 63.50% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
M2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
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 Senior Certificates and the Class M1 Certificates, in each
case,
after giving effect to distributions on such Distribution Date and (ii)
the
aggregate Class Principal Amount of the Class M2 Certificates immediately
prior
to such Distribution Date exceeds (y) the M2 Target Amount.
M2
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 68.10% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
M3
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
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 Senior Certificates and the Class M1 and Class M2 Certificates,
in
each case, after giving effect to distributions on such Distribution Date
and
(ii) the aggregate Class Principal Amount of the Class M3 Certificates
immediately prior to such Distribution Date exceeds (y) the M3 Target
Amount.
36
M3
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 71.50% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
M4
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
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 Senior Certificates and the Class M1, Class M2 and Class
M3
Certificates, in each case, after giving effect to distributions on such
Distribution Date and (ii) the aggregate Class Principal Amount of the
Class M4
Certificates immediately prior to such Distribution Date exceeds (y) the
M4
Target Amount.
M4
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 74.90% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
M5
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
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 Senior Certificates and the Class M1, Class M2, Class M3
and Class
M4 Certificates, in each case, after giving effect to distributions on
such
Distribution Date and (ii) the aggregate Class Principal Amount of the
Class M5
Certificates immediately prior to such Distribution Date exceeds (y) the
M5
Target Amount.
M5
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 78.20% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
M6
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
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 Senior Certificates and the Class M1, Class M2, Class M3,
Class M4
and Class M5 Certificates, in each case, after giving effect to distributions
on
such Distribution Date and (ii) the aggregate Class Principal Amount of
the
Class M6 Certificates immediately prior to such Distribution Date exceeds
(y)
the M6 Target Amount.
37
M6
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 81.10% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
M7
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
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 Senior Certificates and the Class M1, Class M2, Class M3,
Class
M4, Class M5 and Class M6 Certificates, in each case, after giving effect
to
distributions on such Distribution Date and (ii) the aggregate Class Principal
Amount of the Class M7 Certificates immediately prior to such Distribution
Date
exceeds (y) the M7 Target Amount.
M7
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 83.90% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
M8
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
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 Senior Certificates and the Class M1, Class M2, Class M3,
Class
M4, Class M5, Class M6 and Class M7 Certificates, in each case, after giving
effect to distributions on such Distribution Date and (ii) the aggregate
Class
Principal Amount of the Class M8 Certificates immediately prior to such
Distribution Date exceeds (y) the M8 Target Amount.
M8
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 86.80% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
M9
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
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 Senior Certificates and the Class M1, Class M2, Class M3,
Class
M4, Class M5, Class M6, Class M7 and Class M8 Certificates, in each case,
after
giving effect to distributions on such Distribution Date and (ii) the aggregate
Class Principal Amount of the Class M9 Certificates immediately prior to
such
Distribution Date exceeds (y) the M9 Target Amount.
38
M9
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 88.80% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
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, three Business Days immediately preceding
such Distribution Date.
Master
Servicing Fee:
As to
any Distribution Date, an amount equal to 1/12th
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.
Material
Defect:
As
defined in Section 2.02(c) hereof.
Maximum
Interest Rate:
The
Pool 1 Maximum Interest Rate, the Pool 2 Maximum Interest Rate or the
Subordinate Maximum Interest Rate, as applicable.
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.
Monthly
Excess Cashflow:
For
each Distribution Date, the aggregate of any remaining Interest Remittance
Amount pursuant to Section 5.02(d)(v) for such date, any Principal Distribution
Amount remaining pursuant to Section 5.02(e)(ii)(C), 5.02(e)(iii),
5.02(e)(iv)(O) or 5.02(e)(v) for such date, and any Aggregate
Overcollateralization Release Amount for such date.
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.
39
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular
Mortgage
Loan required to be delivered to the Trustee or the Custodian pursuant
to this
Agreement and any related Retained Mortgage File that is delivered to the
Custodian or the Trustee pursuant to Section 2.01(c) of 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 August 1, 2007,
for the
sale of the Mortgage Loans between the Seller and 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 city, state and zip code of the Mortgaged Property; (iii) the original
principal amount of the Mortgage Loan; (iv) the Mortgage Rate at origination;
(v) the monthly payment of principal and interest at origination; (vi)
the
Servicing Fee Rate; (vii) the Mortgage Pool in which such Mortgage Loan
is
included; (viii) whether such Mortgage Loan is subject to a Prepayment
Premium
for voluntary prepayments by the Mortgagor, the term during which such
Prepayment Premiums are imposed and the methods of calculation of the Prepayment
Premium; and (ix) whether such Mortgage Loan is a Simple Interest Mortgage
Loan;
and if applicable, whether such Mortgage Loan is covered by any Bulk PMI
Policy
and the applicable PMI Insurer and the applicable Insurance Fee Rate. 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.
Mortgage
Pool:
Any of
Pool 1 or Pool 2.
Mortgage
Rate:
With
respect to any Mortgage Loan, the per annum rate at which interest accrues
on
such Mortgage Loan, as determined under 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.
40
Net
Excess Spread:
With
respect to any Distribution Date, (A) 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 aggregate of the Interest Remittance Amounts for each Mortgage
Pool for such Distribution Date (as reduced by the aggregate Credit Risk
Manager’s Fee) exceeds (b) the Current Interest payable with respect to the
Certificates for such date and (ii) twelve, and the denominator of which
is the
Aggregate Pool Balance for such Distribution Date, multiplied
by
(B) a
fraction, the numerator of which is thirty and the denominator of which
is the
greater of thirty and the actual number of days in the immediately preceding
calendar month; minus
(C) the
product, expressed as a percentage, of (i) the amount of any Net Swap Payment
owed to the Swap Counterparty for such Distribution Date divided by the
Aggregate Pool Balance as of the beginning of the related Collection Period
and
(ii) a fraction, the numerator of which is 360 and the denominator of which
is
the actual number of days in the Accrual Period related to such Distribution
Date, plus (D) the product, expressed as a percentage, of (i) the sum of
(a) the
amount of any Net Swap Payment and (b) any Interest Rate Cap Payment received
by
the Supplemental Interest Trust for such Distribution Date divided by the
Aggregate Pool Balance as of the beginning of the related Collection Period
and
(ii) a fraction, the numerator of which is 360 and the denominator of which
is
the actual number of days in the Accrual Period related to such Distribution
Date.
Net
Funds Cap:
The
Pool 1 Net Funds Cap, the Pool 2 Net Funds Cap or the Subordinate 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 the
Servicing
Fee Rate for such Mortgage Loan.
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 any amounts paid with respect to such shortfalls by the Servicer pursuant
to the Servicing Agreement.
Net
Simple Interest Excess:
With
respect to any Distribution Date, the excess, if any, of (a) the amount
of the
payments received by the Servicer and the Master Servicer in the related
Collection Period allocable to interest in respect of Simple Interest Mortgage
Loans, calculated in accordance with the Simple Interest Method, net of
the
Servicing Fees, over (b) 30 days’ interest at the weighted average (by principal
balance) of the Net Mortgage Rates of the Simple Interest Mortgage Loans
as of
the first day of the related Collection Period, as determined by the Servicer,
on the aggregate principal balance of such Simple Interest Mortgage Loans
for
such Distribution Date, carried to six decimal places, rounded down, and
calculated on the basis of a 360-day year consisting of twelve 30-day months.
For this purpose, the amount of interest received in respect of the Simple
Interest Mortgage Loans in any month shall be deemed (i) to include any
Advances
of interest made by the Servicer, the Master Servicer or the Securities
Administrator (solely in its capacity as successor master servicer) in
such
month in respect of such Simple Interest Mortgage Loans and (ii) to be
reduced
by any amounts paid to the Servicer, the Master Servicer or the Securities
Administrator (solely in its capacity as successor master servicer) in
such
month in reimbursement of Advances previously made by the Servicer, the
Master
Servicer or the Securities Administrator (solely in its capacity as successor
servicer) in respect of such Simple Interest Mortgage Loans.
41
Net
Simple Interest Shortfall:
With
respect to any Distribution Date, the excess, if any, of (a) 30 days’ interest
at the weighted average (by principal balance) of the Net Mortgage Rates
of the
Simple Interest Mortgage Loans as of the first day of the related Collection
Period, as determined by the Servicer, on the aggregate principal balance
of
such Simple Interest Mortgage Loans for such Distribution Date, carried
to six
decimal places, rounded down, and calculated on the basis of a 360-day
year
consisting of twelve 30-day months, over (b) the amount of the payments
received
by the Servicer or the Master Servicer in the related Collection Period
allocable to interest in respect of such Simple Interest Mortgage Loans,
calculated in accordance with the Simple Interest Method, net of the Servicing
Fees.
Net
Swap Payment:
With
respect to each Swap Payment Date, the sum of (i) 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 (ii) any unpaid amounts
due
on previous Swap Payment Dates and accrued interest thereon as provided
in the
Swap Agreement, as calculated by the Swap Counterparty and furnished to
the
Securities Administrator.
Net
WAC Rate:
With
respect to any Distribution Date (and the related Accrual Period), a per
annum
rate equal to the weighted average of the Net Mortgage Rates of the Mortgage
Loans 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
Residual Securities:
Any
preference shares, ownership certificate or other residual certificates
issued
in connection with any NIM Securities.
NIM
Securities:
Any net
interest margin notes (other than any NIM Residual Securities) issued by
a trust
or other special purpose entity, the principal assets of such trust including
the Class P and Class X Certificates and the payments received thereon,
which
principal assets back such notes.
NIMS
Agreement:
Any
agreement pursuant to which the 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).
42
Non-U.S.
Person:
Any
person other than a “United States person” within the meaning of Section
7701(a)(30) of the Code.
Notional
Amount:
Not
applicable.
Notional
Certificate:
Not
applicable.
Offered
Certificates:
The
Class A1, Class A2, Class A3 and Class A4 Certificates.
Offering
Document:
Each of
the Prospectus and the Private Placement Memorandum.
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 which 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
ERISA, or
the taxation, or the federal income tax status, of each REMIC.
Original
Mortgage Loan:
As
described in the Preliminary Statement.
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.
Overcollateralization
Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the
Aggregate
Pool Balance for such Distribution Date exceeds (y) the aggregate Class
Principal Amount of the LIBOR Certificates after giving effect to distributions
on such Distribution Date.
Overcollateralization
Deficiency:
With
respect to any Distribution Date, the amount, if any, by which (x) the
Targeted
Overcollateralization Amount for such Distribution Date exceeds (y) the
Overcollateralization Amount for such Distribution Date, calculated for
this
purpose after giving effect to the reduction on such Distribution Date
of the
Certificate Principal Amounts of the LIBOR Certificates resulting from
the
distribution of the Principal Distribution Amount on such Distribution
Date, but
prior to allocation of any Applied Loss Amount on such Distribution
Date.
Overcollateralization
Floor:
An
amount equal to $2,273,691.60 (which is approximately 0.50% of the Cut-off
Date
Balance).
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Scheduled Payment
received by the 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.
43
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 LIBOR Certificate, the Percentage
Interest evidenced thereby shall equal the Certificate Principal Amount
thereof
divided by the Class Principal Amount of all Certificates of the same Class.
With respect to the Class X, Class P, Class LT-R and Class R 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 the 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
Insurance Premium:
Not
applicable.
PMI
Insurer:
Not
applicable.
Pool
1:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 1.
Pool
1
Maximum Interest Rate:
For the
Group 1 Senior Certificates, for each Distribution Date on or before the
Distribution Date on which the aggregate Class Principal Amount of the
Group 2
Senior Certificates has been reduced to zero, an annual rate equal to (a)
the
product, expressed as a percentage, of (1) the amount, if any, by which
the
weighted average of the excess of the maximum lifetime Mortgage Rates,
as
specified in the related Mortgage Notes for the Pool 1 Mortgage Loans exceeds
the applicable weighted average Servicing Fee Rate and (2) 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; plus
(b) the
product, expressed as a percentage, of (1) the sum of (x) the amount of
any Net
Swap Payment owed by the Swap Counterparty on the related Swap Payment
Date
allocable to Pool 1 (based on the applicable Pool Percentage) and (y) any
Interest Rate Cap Amount owed by the Cap Counterparty on the related Interest
Rate Cap Payment Date allocable to Pool 1 (based on the applicable Pool
Percentage) divided by the Pool Balance for Pool 1 as of the beginning
of the
related Collection Period and (2) a fraction, the numerator of which is
360 and
the denominator of which is the actual number of days in the Accrual Period
related to such Distribution Date; minus
(c) the
product, expressed as a percentage, of (1) the amount of any Net Swap Payment
owed to the Swap Counterparty on the related Swap Payment Date allocable
to Pool
1 (based on the applicable Pool Percentage) divided by the Pool Balance
for Pool
1 as of the beginning of the related Collection Period and (2) a fraction,
the
numerator of which is 360 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date.
44
Pool
1
Net Funds Cap:
For the
Group 1 Senior Certificates, and for each Distribution Date on or before
the
Distribution Date on which the aggregate Class Principal Amount of the
Group 2
Certificates has been reduced to zero, a per annum rate equal to (a) 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
date over (ii) 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 Date allocable to Pool 1 (based on the applicable Pool Percentage)
and (2) 12, and the denominator of which is the Pool Balance for Pool 1
as of
the first day of the related Collection Period (excluding for this purpose
any
Mortgage Loans in Pool 1 for which any Principal Prepayments in full have
been
deposited into the Collection Account and distributed therefrom in accordance
with Section 5.02 during the month prior to such Distribution Date),
multiplied
by
(b) 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:
With
respect to each Distribution Date, an amount equal to the product of (a)
the
quotient of (i) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in Pool 1 as of the first day of the related Collection Period, and
(ii)
12 and (b) the Pool Balance for Pool 1 as of the first day of the related
Collection Period (excluding for purposes of clauses (a)(i) and (b) any
Mortgage
Loans in Pool 1 for which any Principal Prepayments in full have been deposited
into the Collection Account and distributed therefrom in accordance with
Section
5.02 during the month prior to such Distribution Date).
Pool
2:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 2.
Pool
2
Maximum Interest Rate:
For the
Group 2 Senior Certificates, and for each Distribution Date on or before
the
Distribution Date on which the Class Principal Amount of the Group 1 Senior
Certificates has been reduced to zero, an annual rate equal to (a) the
product,
expressed as a percentage, of (1) the amount, if any, by which the weighted
average of the excess of the maximum lifetime Mortgage Rates, as specified
in
the related Mortgage Notes for the Pool 2 Mortgage Loans exceeds the applicable
weighted average Servicing Fee Rate and (2) 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; plus
(b) the
product, expressed as a percentage, of (1) the sum of (x) the amount of
any Net
Swap Payment owed by the Swap Counterparty on the related Swap Payment
Date
allocable to Pool 2 (based on the applicable Pool Percentage) and (y) any
Interest Rate Cap Amount owed by the Cap Counterparty on the related Interest
Rate Cap Payment Date allocable to Pool 2 (based on the applicable Pool
Percentage) divided by the Pool Balance for Pool 2 as of the beginning
of the
related Collection Period and (2) a fraction, the numerator of which is
360 and
the denominator of which is the actual number of days in the Accrual Period
related to such Distribution Date; minus
(c) the
product, expressed as a percentage, of (1) the amount of any Net Swap Payment
owed to the Swap Counterparty on the related Swap Payment Date allocable
to Pool
2 (based on the applicable Pool Percentage) divided by the Pool Balance
for Pool
2 as of the beginning of the related Collection Period and (2) a fraction,
the
numerator of which is 360 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date.
45
Pool
2
Net Funds Cap:
For the
Group 2 Senior Certificates, and for each Distribution Date on or before
the
Distribution Date on which the Class Principal Amount of the Group 1 Senior
Certificates has been reduced to zero, a per annum rate equal to (a) a
fraction,
expressed as a percentage, the numerator of which is the product of (1)
the
excess, if any, of (i) the Pool 2 Optimal Interest Remittance Amount for
such
date over (ii) 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 Date allocable to Pool 2 (based on the applicable Pool Percentage)
and (2) 12, and the denominator of which is the Pool Balance for Pool 2
as of
the first day of the related Collection Period (excluding for this purpose
any
Mortgage Loans in Pool 2 for which any Principal Prepayments in full have
been
deposited into the Collection Account and distributed therefrom in accordance
with Section 5.02 during the month prior to such Distribution Date),
multiplied
by
(b) 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
2
Optimal Interest Remittance Amount:
With
respect to each Distribution Date, an amount equal to the product of (a)
the
quotient of (i) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in Pool 2 as of the first day of the related Collection Period, and
(ii)
12 and (b) the Pool Balance for Pool 2 as of the first day of the related
Collection Period (excluding for purposes of clauses (a)(i) and (b) any
Mortgage
Loans in Pool 2 for which any Principal Prepayments in full have been deposited
into the Collection Account and distributed therefrom in accordance with
Section
5.02 during the month prior to 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.
Pool
Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the fraction,
expressed
as a percentage, the numerator of which is the Pool Balance for such Mortgage
Pool for such date and the denominator of which is the Aggregate Pool Balance
for such date.
Pool
Subordinate Amount:
As to
each Mortgage Pool and any Distribution Date, the excess of the Pool Balance
for
such Mortgage Pool as of the first day of the immediately preceding Collection
Period over (i) the aggregate Class Principal Amount of the Group 1 Senior
Certificates (in the case of Pool 1) or (ii) the aggregate Class Principal
Amounts of the Group 2 Senior Certificates (in the case of Pool 2) immediately
prior to the related Distribution Date.
46
Prepayment
Interest Shortfall:
With
respect to any full or partial Principal Prepayment of a Mortgage Loan,
the
excess, if any, of (i) one full month’s interest at the applicable Mortgage Rate
(as reduced by the Servicing Fee in the case of Principal Prepayments in
full)
on the outstanding principal balance of such Mortgage Loan immediately
prior to
such prepayment over (ii) the amount of interest actually received with
respect
to such Mortgage Loan in connection with such Principal Prepayment.
Prepayment
Period:
With
respect to any Distribution Date and any Principal Prepayment, whether
in part
or in full (including any Principal Prepayment due to liquidation of a
Mortgage
Loan), the calendar month immediately preceding the month in which such
Distribution Date occurs.
Prepayment
Premium:
Any
prepayment fees and penalties to be paid by the Mortgagor on a Mortgage
Loan.
Primary
Mortgage Insurance Policy:
Any
mortgage guaranty insurance, if any, on an individual Mortgage Loan, including
any Bulk PMI Policy or any LPMI 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.
Prime
Rate:
The
prime rate of the United States money center commercial banks as published
in
The
Wall Street Journal.
Principal
Distribution Amount:
With
respect to each Mortgage Pool and any Distribution Date, an amount equal
to (a)
the Principal Remittance Amount for such Mortgage Pool for such date
minus
(b) the
Aggregate Overcollateralization Release Amount, if any, allocable to such
Mortgage Pool (based on the applicable Senior Proportionate Percentage),
if any,
for such Distribution Date.
Principal
Prepayment:
Any
Mortgagor payment of principal (other than a Balloon Payment) 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.
Principal
Remittance Amount:
With
respect to any Distribution Date and each Mortgage Pool, (a) the sum of
(i) all
principal collected (other than Payaheads and Prepayment Premiums) or advanced
in respect of Scheduled Payments on the Mortgage Loans in such Mortgage
Pool
during the related Collection Period whether by the Servicer, the Master
Servicer or the Securities Administrator (less unreimbursed Advances due
to the
Master Servicer, the Servicer or the Securities Administrator with respect
to
the related Mortgage Loans to the extent allocable to principal), (ii)
all
Principal Prepayments in full or in part received on the Mortgage Loans
in such
Mortgage Pool during the related Prepayment Period, (iii) the outstanding
principal balance of each Mortgage Loan in such Mortgage Pool that was
purchased
from the Trust Fund by the Seller or the Transferor during the related
Prepayment Period or any NIMS Insurer (in the case of certain Mortgage
Loans 90
days or more delinquent) from such Mortgage Pool, (iv) the portion of the
Purchase Price or FPD Purchase Price (excluding any FPD Premium) payable
with
respect to a First Payment Default Mortgage Loan or any Substitution Amount
paid
with respect to any Deleted Mortgage Loan in such Mortgage Pool during
the
related Prepayment 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 Pools during
the
related Prepayment Period, to the extent allocable to principal, as reduced
by
(b) to the extent not reimbursed from the Interest Remittance Amount, any
other
costs, expenses or liabilities reimbursable to the Trustee, the Master
Servicer,
the Securities Administrator, the Custodian and the Servicer to the extent
provided in this Agreement, the Servicing Agreement and the Custodial Agreement
and, with respect to the Trustee, to the extent the Interest Remittance
Amount
is less than amounts reimbursable to the Trustee pursuant to Section 4.04(b)(i),
the product of (x) the applicable Pool Percentage for such Distribution
Date and
(y) any amounts reimbursable during the related Anniversary Year to the
Trustee
therefrom and not reimbursed from the Interest Remittance Amount, or otherwise;
provided,
however,
that
such reimbursable amounts from the Interest Remittance Amount and the Principal
Remittance Amount may not exceed $200,000 in the aggregate during any
Anniversary Year. In the event that the Trustee incurs reimbursable amounts
in
excess of $200,000, it may seek reimbursement for such amounts in subsequent
Anniversary Years, but in no event shall more than $200,000 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 from the $200,000 per Anniversary
Year
limit on reimbursable amounts. For the avoidance of doubt, the (i) the
Principal
Remittance Amount available on each Swap Payment Date for distributions
to the
Swap 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 Swap
Account
on the related Swap Payment Date.
47
Private
Placement Memorandum:
The
private placement memorandum dated August 17, 2007, relating to the Class
M1,
Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class M8, Class
M9,
Class B1 and Class B2 Certificates.
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.
Prospectus:
The
prospectus supplement dated August 17, 2007, together with the accompanying
prospectus dated August 16, 2007, relating to the Offered
Certificates.
Purchase
Price:
With
respect to the purchase of a Mortgage Loan or related REO Property pursuant
to
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) the amount of any costs and damages incurred
by
the Trust Fund as a result of any violation of any applicable federal,
state or
local predatory- or abusive-lending law arising from or in connection with
the
origination of such Mortgage Loan; and (d) any unreimbursed Servicing Advances
with respect to such Mortgage Loan. The Master Servicer, the Servicer,
the
Custodian (or the Trustee or the Securities Administrator, 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 that are reimbursable to the Master Servicer or the Servicer
under
this Agreement or the Servicing Agreement (or to the Trustee or the Securities
Administrator, if applicable), together with any accrued and unpaid compensation
due to the Master Servicer, the Securities Administrator, the Servicer,
the
Custodian or the Trustee hereunder or thereunder.
48
Purchaser
Call Option Notice:
As
defined in Section 7.01(d).
QIB:
As
defined in Section 3.03(c).
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account, the Securities Administration 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, Master Servicer or Securities Administrator, as applicable,
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 or the NIM Securities, the Master Servicer, Securities
Administrator or Trustee, as applicable, 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;
(iv) provide
that the interest of the Trustee, Master Servicer or Securities Administrator,
as applicable, therein shall be transferable to any successor trustee,
master
servicer or securities administrator hereunder; and
(v) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account, the Securities Administration 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 applicable insurance business and to write
the
insurance provided 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 ratings of the Certificates.
49
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) if applicable, has a maximum Mortgage
Rate not
less than the maximum Mortgage Rate on the Deleted Mortgage Loan, (iv)
if
applicable, has a minimum Mortgage Rate not less than the minimum Mortgage
Rate
of the Deleted Mortgage Loan, (v) if applicable, 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) if applicable, 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
longer than 18 months and not more than 18 months shorter than the remaining
stated term to maturity of the related Deleted Mortgage Loan; provided,
that
in
no case should such substitute Mortgage Loan have a maturity date later
than the
Final Scheduled Distribution 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 the 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 Agreement, (xvi) has the same or higher lien position
as the
Deleted Mortgage Loan, (xvii) if applicable, contains provisions covering
the
payment of any Prepayment Premium by the Mortgagor for early prepayment
of the
Mortgage Loan at least as favorable as the Deleted Mortgage Loan, (xviii)
is
covered by a Primary Mortgage Insurance Policy if the Deleted Mortgage
Loan was
so covered and (xix) for any Mortgage Loan to be substituted into Pool
1, has an
original Scheduled Principal Balance within the maximum dollar amount
limitations prescribed by Xxxxxxx Mac for conforming one-to-four family
first
and second lien residential mortgaged properties. 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 the basis of weighted average remaining term to maturity,
provided,
that
the stated maturity date of any Qualifying Substitute Mortgage Loan shall
not be
later than the Final Scheduled Distribution Date (subject to the second
proviso
above), 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 Qualifying Substitute Mortgage
Loan or in the aggregate, as the case may be.
50
Rating
Agency:
Each of
DBRS, Fitch, 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 the 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 any Class of Book-Entry Certificates and any Distribution Date,
the
close of business on the Business Day immediately preceding such Distribution
Date. With respect to 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).
Regular
Interests Purchase Option:
As
defined in Section 7.01(c).
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:
Regulation S promulgated under the Securities Act or any successor provision
thereto, in each case as the same may be amended from time to time; and
all
references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition
or
term, as the case may be, or any successor thereto, in each case as the
same may
be amended from time to time.
Regulation
S Global Security:
The
meaning specified in Section 3.01(d).
Related
Senior Principal Distribution Amount:
For
each Mortgage Pool and any Distribution Date on or after the Stepdown Date
and
for as long as a Trigger Event is not in effect, an amount equal to the
lesser
of (x) the Class Principal Amount of the Group 1 Senior Certificates (with
respect to Pool 1) or the aggregate Class Principal Amount of the Group
2 Senior
Certificates (with respect to Pool 2) immediately prior to such date and
(y) the
product of (a) the Senior Principal Distribution Amount and (b) the related
Senior Proportionate Percentage, in each case for such date.
51
Related
Senior Priority:
With
respect to each of the Group 1 Senior Certificates and the Group 2 Senior
Certificates, the priority of distributions described in Section
5.02(e)(i)(A)(3) and Section 5.02(e)(i)(B)(3), respectively.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit S
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 Paying Agent, the Securities Administrator, the Credit Risk
Manager, the Custodian or the 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
Civil
Relief Act, any amount by which interest collectible on such Mortgage Loan
for
the Due Date in the related Collection Period is less than interest accrued
thereon for the applicable one-month period at the Mortgage Rate without
giving
effect to such reduction.
REMIC:
Each
pool of assets in the Trust Fund designated as a REMIC pursuant to the
Preliminary Statement.
REMIC
1:
As
described in the Preliminary Statement.
REMIC
2:
As
described in the Preliminary Statement.
REMIC
2 Regular Interest:
As
defined in the Preliminary Statement.
REMIC
3:
As
described in the Preliminary Statement.
REMIC
3 Regular Interest:
As
defined in the Preliminary Statement.
REMIC
3 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 REMIC 3 Regular Interest (other than an interest-only regular interest),
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
4:
As
described in the Preliminary Statement.
REMIC
Provisions:
The
provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and regulations, including
proposed regulations and rulings, and administrative pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
REMIC
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 C-1 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.
52
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).
Required
Reserve Fund Deposit:
With
respect to any Distribution Date on which the Net Excess Spread is less
than
0.25%, the amount, if any by which (a) the product of 1.00% and the Aggregate
Pool Balance for such date exceeds (b) the amount on deposit in the Basis
Risk
Reserve Fund immediately prior to such date. With respect to any Distribution
Date on which the Net Excess Spread is equal to or greater than 0.25%,
the
amount, if any, by which (i) $1,000 exceeds the amount on deposit in the
Basis
Risk Reserve Fund immediately prior to such date; provided,
however,
that on
any Distribution Date on which the Class Principal Amount of each Class
of LIBOR
Certificates has been reduced to zero, the Required Reserve Fund Deposit
shall
be zero.
Residual
Certificate:
Any
Class LT-R or Class R Certificate.
Responsible
Officer or responsible officer:
When
used with respect to the Trustee (including in its capacity as Paying Agent)
or
the Securities Administrator, any vice president, assistant vice president,
the
secretary, any assistant secretary, or any officer, working in its Corporate
Trust Office or corporate trust group, as applicable, 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 M, Class B, Class P, Class X, Class LT-R or Class R
Certificate.
Restricted
Global Security:
As
defined in Section 3.01(c).
Retained
Mortgage File:
Any
file of mortgage loan documents maintained by the Servicer, pursuant to
Section
2.01 of the Servicing Agreement, prior to any Document Transfer
Event.
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.
53
Xxxxxxxx-Xxxxx
Act:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification:
A
written certification covering the activities of all Servicing Function
Participants and signed by an officer of the Exchange Act Signing Party
that
complies with Section 302 of the Xxxxxxxx-Xxxxx Act, as amended from time
to
time.
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
(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 (other than a Simple Interest 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 the Servicer or the Master Servicer, and all amounts 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 as of the Cut-off Date, the principal balance
of
such Mortgage Loan as specified in the Mortgage Loan Schedule. The Scheduled
Principal Balance of any Liquidated Mortgage Loan shall be zero. In the
case of
a Simple Interest Mortgage Loan, references herein to such Mortgage Loan’s
Scheduled Principal Balance shall mean its actual unpaid principal balance.
The
actual unpaid principal balance of a Simple Interest Mortgage Loan with
respect
to any Distribution Date shall be determined by subtracting from such Mortgage
Loan’s unpaid principal balance as of the end of the preceding Collection Period
the amount of the borrower’s fixed monthly payment for the related Collection
Period that is not allocated to the payment of interest applying the Simple
Interest Method.
Section
7.01(c) Purchase Event:
The
purchase of all the Lower Tier REMIC 1 Uncertificated Regular
Interests.
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Administration Account:
A
separate account established pursuant to Section 4.05.
54
Securities
Administrator:
Xxxxx
Fargo Bank, N.A., not in its individual capacity but solely as Securities
Administrator, or any successor in interest, or if any successor securities
administrator shall be appointed as herein provided, then such successor
securities administrator.
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.
Senior
Certificate:
Any
Class A1, Class A2, Class A3 or Class A4 Certificates.
Senior
Enhancement Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is the sum of the aggregate Class Principal Amount of
the
Subordinate Certificates and the 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 has
been
distributed on such Distribution Date and no Trigger Event has occurred)
and the
denominator of which is the Aggregate Pool Balance for such Distribution
Date,
in each case after giving effect to distributions on such Distribution
Date.
Senior
Principal Distribution Amount:
With
respect to any Distribution Date, on or after the Stepdown Date and as
long as a
Trigger Event is not in effect with respect to such Distribution Date,
the
lesser of (x) the aggregate Principal Distribution Amount for both Mortgage
Pools and (y) the amount, if any by which (A) the aggregate Class Principal
Amount of the Senior Certificates immediately prior to such Distribution
Date
exceeds (B) the Senior Target Amount.
Senior
Proportionate Percentage:
With
respect to Pool 1 and any Distribution Date, the fraction, expressed as
a
percentage, the numerator of which is the Principal Remittance Amount for
Pool 1
for such Distribution Date and the denominator of which is the aggregate
of the
Principal Remittance Amounts for Pool 1 and Pool 2 for such Distribution
Date.
With respect to Pool 2 and any Distribution Date, the fraction, expressed
as a
percentage, the numerator of which is the Principal Remittance Amount for
Pool 2
for such Distribution Date and the denominator of which is the aggregate
of the
Principal Remittance Amounts for Pool 1 and Pool 2 for such Distribution
Date.
Senior
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a)
the
product of (i) 53.60% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any Principal Prepayments received during the related
Prepayment Period) and (b) the amount, if any, by which (i) the Aggregate
Pool
Balance for such Distribution Date determined as of the last day of the
related
Collection Period (after giving effect to any Principal Prepayments received
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor.
Servicer:
Xxxxx
Fargo Bank, N.A., or any of its successors in interest.
55
Servicer
Prepayment Premium Payment Amount:
Any
amount payable by the Servicer in respect of any impermissible waiver by
the
Servicer of a Prepayment Premium pursuant
to the Servicing Agreement.
Servicer
Remittance Date:
The day
in each calendar month on which the Servicer is required to remit payments
to
the Collection Account, as specified in the 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).
Servic(es)(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:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Advances (including reasonable attorneys’ fees and disbursements) incurred
in the performance by the Servicer of its servicing obligations, including,
but
not limited to, the cost of (a) the preservation, inspection, restoration
and
protection of the Mortgaged Property, (b) any enforcement or administrative
or
judicial proceedings, including foreclosures, (c) the management and liquidation
of the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage, (d) taxes, assessments, water rates, sewer rents and other
charges which are or may become a lien upon the Mortgaged Property, and
fire and
hazard insurance coverage and (e) any losses sustained by the Servicer
with
respect to the liquidation of the Mortgaged Property.
Servicing
Agreement:
The
Reconstituted Servicing Agreement, dated as of August 1, 2007, among the
Seller,
the Master Servicer and the Servicer, and any other servicing agreement
entered
into between a successor servicer and the Seller pursuant to the terms
of this
Agreement.
Servicing
Criteria:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
Servicing
Fee:
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 Scheduled 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, 0.50% per annum, or the rate specified in
the
Servicing Agreement.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than the Servicer,
the
Custodian, the Master Servicer, the Paying Agent and the Securities
Administrator, 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.
Servicing
Officer:
Any
officer of the Servicer involved in or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Master Servicer or Seller upon
request, as such list may from time to time be amended.
56
Simple
Interest Method:
With
respect to a Simple Interest Mortgage Loan, the method of allocating a
payment
to principal and interest, pursuant to which the portion of such payment
that is
allocated to interest is equal to the product of the applicable rate of
interest
multiplied by the unpaid principal balance multiplied by the period of
time
elapsed since the preceding payment of interest was made and divided by
either
360 or 365, as specified in the related Mortgage Note and the remainder
of such
payment is allocated to principal.
Simple
Interest Mortgage Loan:
Any
Mortgage Loan specified as a “DSI Loan” in the Mortgage Loan Schedule attached
hereto as Schedule A. As of the Closing Date, there are no Simple Interest
Mortgage Loans included in the Trust Fund.
Sponsor:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Stepdown
Date:
The
earlier of (i) the first Distribution Date following the Distribution Date
on
which the Class Principal Amounts of the Senior Certificates have each
been
reduced to zero or (ii) the later to occur of (x) the Distribution Date
in
September 2010 and (y) the first Distribution Date on which the Senior
Enhancement Percentage (calculated for this purpose after giving effect
to
payments or other recoveries in respect of the Mortgage Loans during the
related
Collection Period but before giving effect to distributions on the Certificates
on such Distribution Date) is greater than or equal to 46.40%.
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 functions identified in Item 1122(d) of Regulation AB with
respect
to the Mortgage Loans under the direction or authority of the Paying Agent,
the
Master Servicer, the Custodian, the Servicer, the Securities Administrator
or
the Credit Risk Manager.
Subordinate
Certificate:
Any
Class M Certificate or Class B Certificate.
Subordinate
Maximum Interest Rate:
For (i)
the Group 1 Senior Certificates, with respect to each Distribution Date
after
the Distribution Date on which the aggregate Class Principal Amount of
the Group
2 Senior Certificates has been reduced to zero; (ii) the Group 2 Senior
Certificates, with respect to each Distribution Date after the Distribution
Date
on which the Class Principal Amount of the Group 1 Senior Certificates
has been
reduced to zero; and (iii) the Subordinate Certificates, the weighted average
of
the Pool 1 Maximum Interest Rate and the Pool 2 Maximum Interest Rate for
such
Distribution Date, weighted on the basis of (i) in the case of any Distribution
Date on or before the date on which the aggregate Class Principal Amount
of the
Senior Certificates relating to any Mortgage Pool has been reduced to zero,
the
Pool Subordinate Amount for each Mortgage Pool and (ii) for any Distribution
Date thereafter, such weighting shall be on the basis of the Pool Balance
of
each Mortgage Pool.
57
Subordinate
Net Funds Cap:
With
respect to any Distribution Date, an amount equal to the weighted average
of the
Pool 1 Net Funds Cap and the Pool 2 Net Funds Cap, weighted on the basis
of the
Pool Subordinate Amount for each Mortgage Pool; provided,
however,
that on
any Distribution Date after which the aggregate Class Principal Amount
of the
Senior Certificates relating to either Mortgage Pool has been reduced to
zero,
such weighting shall be on the basis of the Pool Balance of each Mortgage
Pool.
Subordinate
Priority:
To the
Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class
M8,
Class M9, Class B1 and Class B2 Certificates, sequentially, in that
order.
Subsequent
Recovery:
Any
amount recovered by the 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 the Mortgage Loans on behalf of the Servicer or Additional Servicer,
and (iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of Servicing functions required to be performed
under this Agreement, the Servicing Agreement or any subservicing agreement
that
is 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, any related unpaid Advances or Servicing Advances or
unpaid
Servicing Fees and the amount of any costs and damages incurred by the
Trust
Fund associated with a violation of any applicable federal, state or local
predatory or abusive lending law in connection with the origination of
such
Deleted Mortgage Loan.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 5.07 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Swap Account, the Interest Rate Cap Agreement, the Interest
Rate
Cap Account, the right to receive the Class X Distributable Amount as provided
in Section 5.02(f)(vi), the Class LT4-I interest in REMIC 4 and the right
to
receive Class I Shortfalls.
Swap
Account:
The
account created pursuant to Section 5.07(a) of this Agreement.
Swap
Agreement:
The
interest rate swap agreement (Ref. Ids: 53284789N/447987288) dated August
30,
2007 entered into by the Trustee on behalf of the Supplemental Interest
Trust
and the Swap Counterparty, which agreement provides for, among other things,
a
Net Swap Payment to be paid, commencing with the Distribution Date in October
2007 and ending with the Distribution Date in August 2013, but subject
to the
conditions provided therein, together with any schedules, confirmations,
Credit
Support Annex or other agreements relating thereto, attached hereto as
Exhibit
O.
Swap
Amount:
With
respect to each Distribution Date and the related Swap Payment Date, the
sum of
any Net Swap Payment and any Swap Termination Payment deposited into the
Swap
Account.
58
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
Credit Suisse International.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default
with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event (other than a Termination Event of Illegality or Tax Event as such
terms
are defined in the Swap Agreement) with respect to which the Swap Counterparty
is the sole Affected Party or an Additional Termination Event with respect
to
which the Swap Counterparty is the sole Affected Party has
occurred.
Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
Swap
LIBOR:
With
respect to any Distribution Date (and the 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, as calculated by the Swap Counterparty and furnished to the
Securities Administrator, (ii) two, and (iii) the quotient of (a) the actual
number of days in the Accrual Period for the LIBOR Certificates and (b)
30.
Swap
Payment Date:
For so
long as the Swap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
Swap
Replacement Receipts:
As
defined in Section 5.09.
Swap
Replacement Receipts Account:
As
defined in Section 5.09.
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 and the Securities Administrator.
Swap
Termination Receipts:
As
defined in Section 5.09.
Swap
Termination Receipts Account:
As
defined in Section 5.09.
Target
Amount:
With
respect to any Distribution Date, an amount equal to the Aggregate Pool
Balance
for such Distribution Date minus
the
Targeted Overcollateralization Amount for such Distribution Date.
Targeted
Overcollateralization Amount:
For any
Distribution Date prior to the Stepdown Date, an amount equal to $17,280,319.34
(or approximately 3.80% of the Cut-off Date Balance). For any Distribution
Date
on or after the Stepdown Date and provided a Trigger Event is not in effect,
an
amount equal to the greater of (i) the lesser of (a) $17,280,319.34 (or
approximately 3.80% of the Cut-off Date Balance) and (b) 7.60% of the Aggregate
Pool Balance for such Distribution Date determined as of the last day of
the
related Collection Period (after giving effect to any Principal Prepayments
received during the related Prepayment Period) and (ii) the
Overcollateralization Floor. With respect to any Distribution Date on or
after
the Stepdown Date and provided a Trigger Event is in effect, an amount
equal to
the Targeted Overcollateralization Amount for the immediately preceding
Distribution Date.
59
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Termination
Event:
As
defined in the Swap Agreement.
Termination
Price:
As
defined in Section 7.01.
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Total
Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the aggregate of the Interest
Remittance Amounts for such date, (ii) the aggregate of the Principal Remittance
Amounts for such date and (iii) all Prepayment Premiums collected during
the
related Prepayment Period.
Transfer
Agreement:
As
defined in the Mortgage Loan Sale Agreement.
Transferor:
Xxxxx
Fargo Bank, N.A., as seller of the Mortgage Loans to the Bank pursuant
to the
Transfer Agreement.
Trigger
Event:
A
Trigger Event shall have occurred with respect to any Distribution Date
if
either a Delinquency Event or a Cumulative Loss Trigger Event is in effect
for
such Distribution Date.
Trust
Fund:
The
corpus of the Structured Asset Securities Corporation Mortgage Loan Trust
2007-WF2 created pursuant to this Agreement, consisting of the Mortgage
Loans,
the assignment of the Depositor’s rights under the Transfer Agreement, the
Mortgage Loan Sale Agreement and the Servicing Agreement, such amounts
as shall
from time to time be held in the Collection Account, the Securities
Administration Account, the Certificate Account, the Custodial Account
and any
Escrow Account, the Basis Risk Reserve Fund, the Insurance Policies, any
REO
Property and the other items referred to in, and conveyed to the Trustee
under,
Section 2.01(a).
Trust
Fund Termination Event:
As
defined in Section 7.01(a).
Trustee:
U.S.
Bank National Association, not in its individual capacity but solely as
Trustee,
or any successor in interest, or if any successor trustee shall be appointed
as
herein provided, then such successor in interest or successor trustee,
as the
case may be.
Trustee
Fee:
A fixed
annual fee of $3,500, which is paid first,
by the
Securities Administrator pursuant to Section 6.12, second,
to the
extent not paid under first,
from
income and earnings on the amounts on deposit in the Securities Administration
Account as provided in Section 4.05(f) and third,
to the
extent not paid under first
or
second,
from
income and earnings on the amounts on deposit in the Certificate Account
as
provided in Section 4.04(c).
60
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 2007-5, (72 Fed. Reg. 13130, March 20,
2007),
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 LIBOR Certificate, the aggregate
of all
Basis Risk Shortfalls with respect to such Certificate remaining unpaid
from
previous Distribution Dates, plus interest accrued thereon for the related
Accrual Period at the applicable Certificate Interest Rate (calculated
without
giving effect to the applicable Net Funds Cap) but limited to a rate no
greater
than the applicable Maximum Interest Rate.
Upper
Tier REMIC:
REMIC
4.
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, 97.00% of all Voting Interests
shall be
allocated to the LIBOR Certificates. Voting Interests shall be allocated
among
the Classes of LIBOR Certificates based on the product of (i) 97.00% and
(ii)
the fraction, expressed as a percentage, the numerator of which is the
aggregate
Certificate Principal Amount of all Certificates of that Class then outstanding
and the denominator of which is the aggregate Class Principal Amount of
all
Certificates then outstanding. At all times during the term of this Agreement,
1% of all Voting Interests shall be allocated to each of the Class P, Class
R
and Class 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. In the case of
the
purchase by the Master Servicer of the Lower Tier REMIC 1 Uncertificated
Regular
Interests pursuant to a Section 7.01(c) 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 the Certificates or any Class of Certificates may be exercised
by
the LTURI-holder.
Xxxxx
Fargo:
Xxxxx
Fargo Bank, N.A.
Section
1.02. Calculations
Respecting Mortgage Loans.
Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan
in the Trust Fund shall be made based upon current information as to the
terms
of the Mortgage Loans and reports of payments received from the Mortgagor
on
such Mortgage Loans and payments to be made to the Securities Administrator
as
supplied to the Securities Administrator by the Master Servicer, the Swap
Counterparty or the Cap Counterparty. The Securities Administrator shall
not be
required to recompute, verify or recalculate the information supplied to
it by
the Master Servicer, the Servicer, the Swap Counterparty, the Cap Counterparty
or the Credit Risk Manager.
61
Section
1.03. Calculations
Respecting Accrued Interest.
Accrued
interest, if any, on any LIBOR Certificate shall be calculated based upon
a
360-day year and the actual number of days in each Accrual Period. Accrued
interest on the Class X Certificate and any Class of Lower Tier Interest
shall
be calculated based upon a 360-day year consisting of twelve 30-day months.
62
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 and all amounts from time to time credited to and
the
proceeds of the Collection Account, the Certificate Account and all amounts
from
time to time credited to and the proceeds of the Certificate Account, the
Securities Administration Account and all amounts from time to time credited
to
and the proceeds of the Securities Administration Account (exclusive of
investment earnings thereon), any Custodial Accounts and all amounts from
time
to time credited to and the proceeds of the Custodial Accounts, any Escrow
Account established pursuant to Section 9.06 and any Basis Risk Reserve
Fund
established pursuant to Section 5.06 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 Additional
Collateral, and any proceeds of the foregoing, to have and to hold, in
trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it has received and shall hold the Trust Fund, as trustee, in trust,
for
the benefit and use of the Holders of the Certificates and for the purposes
and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated
and
delivered to or upon the order of the Depositor, in exchange for the Trust
Fund,
Certificates in the authorized denominations evidencing the entire ownership
of
the Trust Fund.
Concurrently
with the execution of this Agreement, the Swap Agreement and the Interest
Rate
Cap Agreement shall be delivered to the Trustee for the benefit of the
Trust
Fund. 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 Swap Agreement and the Interest Rate Cap Agreement (each on
behalf
of the Supplemental Interest Trust) for the benefit of, the Certificateholders.
The Seller, the Master Servicer, the Securities Administrator, the Depositor,
the Servicer and the Certificateholders (by their acceptance of such
Certificates) acknowledge and agree that the Trustee is executing and delivering
the Swap Agreement and the Interest Rate Cap Agreement solely in its capacity
as
Trustee of the Supplemental Interest Trust and the Trust Fund and not in
its
individual capacity. The Trustee shall have no duty or responsibility to
enter
into any other swap agreement or interest rate cap agreement upon the expiration
or termination of the Swap Agreement or the Interest Rate Cap
Agreement.
63
Concurrently
with the execution and delivery of this 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 the Servicing
Agreement
and the Transfer Agreement (including the right to enforce the Transferor’s
obligation to repurchase First Payment Default Mortgage Loans pursuant
to the
related Commitment Letter) but
only
to the extent assigned under the Mortgage Loan Sale Agreement. The Trustee
hereby accepts such assignment, 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.
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.
The
foregoing sale, transfer, assignment, set-over, deposit and conveyance
does not
and is not intended to result in the creation or assumption by the Trustee
of
any obligation of the Depositor, the Seller or any other Person in connection
with the Mortgage Loans.
The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
(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 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, 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) the
original of any guarantee executed in connection with the Mortgage Note,
assigned to the Trustee;
(iii) 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 to the Custodian) is
a true
copy and that the original of such agreement has been forwarded to the
public
recording office; and
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(iv) with
respect to each Non-MERS Mortgage Loan other than a Cooperative Loan, an
original Assignment of Mortgage, in form and substance acceptable for recording.
The Mortgage shall be assigned either (A) in blank, without recourse or
(B) to
“U.S. Bank National Association, as Trustee of the Structured Asset Securities
Corporation Mortgage Loan Trust 2007-WF2,” without recourse.
(c) Pursuant
to the Servicing Agreement, the Servicer will hold the Retained Mortgage
Files
in trust for the benefit of the Trustee. The possession of each Retained
Mortgage File held by the Servicer is in a custodial capacity only. Within
60
days of the occurrence of a Document Transfer Event, the Servicer shall,
pursuant to Section 2.01 of the Servicing Agreement, deliver or cause to
be
delivered to and deposited with the Trustee or to the corporate trust services
division of the Custodian the Retained Mortgage Files consisting of the
following additional items, as applicable:
(i) 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 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
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 acceptable 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;
(ii) 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 acceptable to the Trustee and any NIMS Insurer that such original
Intervening Assignment is not required to enforce the Trustee’s interest in the
Mortgage Loan;
(iii) with
respect to any Mortgage Loan other than a Cooperative Loan, the original
mortgagee title insurance policy (or, in lieu thereof, a commitment to
issue
such title insurance policy, with an original or certified copy of such
title
insurance policy to follow as soon after the Closing Date as reasonably
practicable) or attorney’s opinion of title and abstract of title;
65
(iv) if
applicable, the original Primary Mortgage Insurance Policy or certificate
or an
electronic certification evidencing the existence of the Primary Mortgage
Insurance Policy or certificate, if private mortgage guaranty insurance
is
required;
(v) 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 Custodian) is a true copy and that the original of such
document
has been forwarded to the public recording office;
(vi) with
respect to any Cooperative Loan, the Cooperative Loan Documents;
and
(vii) with
respect to any manufactured housing contract, any related manufactured
housing
sales contract, installment loan agreement or participation
interest.
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.
(d) 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 direct the 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 Servicer, shall direct the Servicer to properly record
in
each public recording office where the related Mortgages are recorded each
Assignment of Mortgage referred to in subsection (b)(iv) above with respect
to
each Non-MERS Mortgage Loan.
(ii) With
respect to each MERS Mortgage Loan, the Master Servicer shall direct the
Servicer, at the expense of the Depositor, 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. With respect to each
Cooperative Loan, the Master Servicer, at the expense of the Depositor
and with
the cooperation of the Servicer, shall direct the 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.
66
(e) In
instances where a Title Insurance Policy is required to be delivered to
the
Trustee or the Custodian on behalf of the Trustee under clause (c)(iii)
above
and is not so delivered, the Depositor will provide a copy of such Title
Insurance Policy to the Trustee, or to the 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.
(f) 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 any NIMS Insurer and the Trustee, or to
the
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 Custodian on behalf of the Trustee shall
be held
by the Master Servicer or the Servicer in trust for the benefit of the
Trustee
and the Certificateholders.
(g) The
issuing entity is hereby named “Structured Asset Securities Corporation Mortgage
Loan Trust 2007-WF2”.
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
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 Custodian on behalf of the Trustee, under this Section 2.02.
The
Trustee, or the Custodian on behalf of the Trustee, will execute and deliver
to
the Depositor, the Master Servicer, the Servicer, the Trustee 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 Custodial Agreement as Exhibit
B-1, as applicable).
(b) Within
45
days after the Closing Date, the Trustee or the Custodian on behalf of
the
Trustee, will, for the benefit of Holders of the Certificates, 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 Servicer, 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 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 Mortgage Loan specifically
identified in such certification as not covered by such certification),
(i) all
of the applicable documents specified in Section 2.01(c) 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 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 the 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.
67
(c) If
in the
course of the review described in paragraph (b) above the Trustee or the
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 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 Depositor, the Trustee 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 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 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.
(d) Within
180 days following the Closing Date, the Trustee, or the Custodian, shall
deliver to the Trustee, the Depositor, the Master Servicer, the Servicer
and any
NIMS Insurer a Final Certification substantially in the form attached as
Exhibit
B-3 (or in the form annexed to the 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 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 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. The Trustee, solely in
its
capacity as Trustee hereunder, is hereby authorized and directed by the
Depositor to appoint the Custodian and to execute and deliver the Custodial
Agreement.
68
(g) Upon
execution of this Agreement, the Depositor hereby delivers to the Trustee
and
the Trustee acknowledges receipt of the Mortgage Loan Sale Agreement and
the
Servicing Agreement. The Depositor hereby directs the Trustee, solely in
its
capacity as Trustee hereunder, to execute and deliver, concurrently with
the
execution and delivery of this Agreement, the 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, the Master Servicer, the Securities Administrator and
any
NIMS Insurer 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;
none
of the execution and delivery of this Agreement, the consummation of the
transactions herein contemplated, or the 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, the Master Servicer,
the Securities Administrator and the Credit Risk Manager, constitutes a
valid
and binding obligation of the Depositor enforceable against it in accordance
with its terms except as such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in
equity
or at law;
(v) there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened or likely to be asserted against or affecting the Depositor,
before
or by any court, administrative agency, arbitrator or governmental body
(A) with
respect to any of the transactions contemplated by this Agreement or (B)
with
respect to any other matter which in the judgment of the Depositor will
be
determined adversely to the Depositor and will if determined adversely
to the
Depositor materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to
perform
its obligations under this Agreement; and
69
(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 the Transferor with respect to the related
Mortgage Loans in the Transfer Agreement, which have been assigned to the
Trustee hereunder, were made as of the date specified in the 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 Transferor under the 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, any Certificateholder
or any
NIMS Insurer hereunder shall be their rights to enforce the obligations
of the
Transferor under any applicable representation or warranty made by it.
The
Trustee acknowledges that except as otherwise provided in the Mortgage
Loan Sale
Agreement, the Seller shall not have any 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
Transferor in the Transfer Agreement without regard to whether the Transferor
fulfills its contractual obligations in respect of such representation
or
warranty. The Trustee further acknowledges that the Depositor shall have
no
obligation or liability with respect to any breach of any representation
or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.03(a)(vi)) under any circumstances.
Section
2.04. Discovery
of Breach.
It
is
understood and agreed that the representations and warranties (i) of the
Depositor 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 the Transferor and of the 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 Master Servicer, the Securities Administrator or the
Trustee
of a breach of any of such representations and warranties that adversely
and
materially affects the value of the related Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties; provided,
to
the extent that knowledge of such breach with respect to any Mortgage Loan
is
known by any officer, director, employee or agent of Aurora acting in any
capacity other than as Master Servicer hereunder, the Master Servicer shall
not
be deemed to have knowledge of any such breach until an officer of the
Master
Servicer has actual knowledge thereof. Within 90 days of the discovery
of a
breach of any representation or warranty given to the Trustee by the Depositor
or given by the Transferor or the Seller and assigned to the Trustee, the
Depositor, the 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
in the case of a First Payment Default Mortgage Loan, the FPD Purchase
Price
(excluding any FPD Premium)) or (c) within the two-year period following
the
Closing Date, substitute a Qualifying Substitute Mortgage Loan for the
affected
Mortgage Loan. Upon discovery by any of the Depositor, the Trustee or the
Master
Servicer of a breach of any representation and warranty of the Transferor
assigned to the Trustee, the party discovering such breach shall give prompt
written notice to the other parties and the Trustee shall enforce its rights
under the Transfer Agreement and the Mortgage Loan Sale Agreement for the
benefit of Certificateholders and any NIMS Insurer. As provided in the
Mortgage
Loan Sale Agreement, if the Transferor substitutes a mortgage loan for
a Deleted
Mortgage Loan pursuant to the 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.
70
Section
2.05. Repurchase,
Purchase or Substitution of Mortgage Loans.
(a) With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement or by the Seller pursuant to the Mortgage Loan Sale Agreement
or by
the Transferor pursuant to the Transfer Agreement, the principal portion
of the
funds (including the related FPD Purchase Price (excluding any FPD Premium)
in
the case of a First Payment Default Mortgage Loan) received by the Trustee
in
respect of such repurchase of a Mortgage Loan will be considered a Principal
Prepayment and the Purchase Price or FPD Purchase Price (excluding any
FPD
Premium) shall be deposited in the Certificate Account. 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 or the Seller, 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 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 Securities Administrator,
the
Trustee, the Depositor, any NIMS Insurer 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 Master Servicer, the
Securities Administrator, the Depositor, any NIMS Insurer and any
Certificateholder may sustain in connection with any actions of such 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.
71
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to
the
Trustee (or the 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 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 granting language substantially comparable
to that set forth in the first paragraph of 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 at the direction and with
the
cooperation of the 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 Servicer if required pursuant to Section
2.01(d), 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(d).
(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 and any NIMS Insurer has received
an
Opinion of Counsel addressed to the Trustee (at the expense of the party
seeking
to make the substitution) that, under current law, such substitution will
not
cause 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
of the
Certificates 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 Lower Tier REMIC 1
Uncertificated Regular Interests, if 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 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 Lower Tier REMIC 1
Uncertificated Regular Interests, as applicable (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
Lower Tier REMIC 1 Uncertificated 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.
72
(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 intermediate transferees,
including the Trustee, in the Mortgage Loans. In connection with the
transactions contemplated by this Agreement, each of the Seller and the
Depositor authorizes its immediate or intermediate transferee to file in
any
filing office any initial financing statements, any amendments to financing
statements, any continuation statements, or any other statements or filings
described in this paragraph (b).
73
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 in the Percentage Interests, specified herein. Each Class of
Book-Entry Certificates will be issued in the minimum denominations in
Certificate Principal Amount specified in the Preliminary Statement hereto
and
in integral multiples of $1 in excess thereof. The Class P and Class X
Certificates shall each be maintained in definitive, fully registered form
in
the minimum denomination specified in the Preliminary Statement hereto
and in
integral multiples of 1% in excess thereof. Each of the Class LT-R and
Class R
Certificate 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 each 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 (or its custodian) 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. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates
executed
by the Depositor to the Trustee or the Authenticating Agent for authentication
and the Trustee or the Authenticating Agent shall authenticate and deliver
such
Certificates as in this Agreement provided and not otherwise.
(c) The
Class
M and Class B Certificates offered and sold in reliance on the exemption
from
registration under Rule 144A under the Securities Act shall be issued initially
in the form of one or more permanent global Certificates in definitive,
fully
registered form without interest coupons with the applicable legends set forth
in Exhibit A added to the forms of such Certificates (each, a “Restricted Global
Security”), which shall be deposited on behalf of the subscribers for such
Certificates represented thereby with the Trustee, as custodian for DTC
and
registered in the name of a nominee of DTC, duly executed and authenticated
by
the Trustee as hereinafter provided. The aggregate principal amounts of
the
Restricted Global Securities may from time to time be increased or decreased
by
adjustments made on the records of the Trustee or DTC or its nominee, as
the
case may be, as hereinafter provided.
74
(d) The
Class
M and Class B Certificates sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more permanent
global Certificates in definitive, fully registered form without interest
coupons with the applicable legends set forth in Exhibit A hereto added
to the
forms of such Certificates (each, a “Regulation S Global Security”), which shall
be deposited on behalf of the subscribers for such Certificates represented
thereby with the Trustee, as custodian for DTC and registered in the name
of a
nominee of DTC, duly executed and authenticated by the Trustee as hereinafter
provided. The aggregate principal amounts of the Regulation S Global Securities
may from time to time be increased or decreased by adjustments made on
the
records of the Trustee or DTC or its nominee, as the case may be, as hereinafter
provided.
(e) The
Class
M and Class B Certificates sold to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Securities Act shall be issued initially
in
the form of one or more Definitive Certificates.
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(c)
Purchase
Event, the Lower Tier REMIC 1 Uncertificated Regular Interests) and shall
maintain books for the registration and for the transfer of Certificates
(and,
after a Section 7.01(c) Purchase Event, the Lower Tier REMIC 1
Uncertificated 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 Lower Tier REMIC 1
Uncertificated Regular Interests, as the case may be) 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 a written instrument delivered to
the
Holders, any NIMS Insurer 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(c) 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 Lower Tier REMIC 1 Uncertificated Regular
Interests, which notice shall contain a certification that such transferee
is a
permitted LTURI-holder hereunder. The Lower Tier REMIC 1 Uncertificated
Regular
Interests 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 Lower Tier REMIC 1
Uncertificated 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.
75
(a) A
Certificate (other than a Book-Entry Certificate 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.
(c) By
acceptance of a Restricted Certificate or a Regulation S Global Security,
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. In addition, each Holder of a Regulation S Global Security
shall be deemed to have represented and warranted to the Trustee, the
Certificate Registrar and any of their respective successors that: (i)
such
Person is not a U.S. person within the meaning of Regulation S and was,
at the
time the buy order was originated, outside the United States and (ii) such
Person understands that such Certificates have not been registered under
the
Securities Act, and that (x) until the expiration of the 40-day distribution
compliance period (within the meaning of Regulation S), no offer, sale,
pledge
or other transfer of such Certificates or any interest therein shall be
made in
the United States or to or for the account or benefit of a U.S. person
(each as
defined in Regulation S), (y) if in the future it decides to offer, resell,
pledge or otherwise transfer such Certificates, such Certificates may be
offered, resold, pledged or otherwise transferred only (A) to a person
which the
seller reasonably believes is a “qualified institutional buyer” (a “QIB”) as
defined in Rule 144A under the Securities Act, that is purchasing such
Certificates for its own account or for the account of a qualified institutional
buyer to which notice is given that the transfer is being made in reliance
on
Rule 144A under the Securities Act or (B) in an offshore transaction (as
defined
in Regulation S) in compliance with the provisions of Regulation S, in
each case
in compliance with the requirements of this Agreement; and it will notify
such
transferee of the transfer restrictions specified in this Section.
76
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 the Placement Agent,
an
affiliate (as defined in Rule 405 under the Securities Act) of the Depositor
or
the Placement Agent 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 Securities 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.
(d) (i) No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person 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 satisfactory to the Trustee, 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 Servicer, the Securities Administrator,
any
NIMS Insurer or the Depositor 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, counsel satisfactory to the Trustee
has
rendered an opinion 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
Servicer, the Securities Administrator, any NIMS Insurer or the
Depositor.
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 any such 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.
77
(ii)
No
transfer of an ERISA-Restricted Trust Certificate shall be made prior to
the
termination of the Swap Agreement and the Interest Rate Cap Agreement,
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 Trust
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, prior
to the
termination of the Swap Agreement and the Interest Rate Cap Agreement,
any
purported transfer of an ERISA-Restricted Trust Certificate 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 Trust Certificate
is a Book-Entry Certificate, prior to the termination of the Swap Agreement
and
the Interest Rate Cap Agreement, the transferee will be deemed to have
made a
representation as provided in clause (i) or (ii) of this paragraph, as
applicable.
If
any
ERISA-Restricted Trust Certificate, or any interest therein, is acquired
or held
in violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Trust Certificate, or interest therein, was effected in
violation of the provisions of the preceding paragraph shall indemnify
to the
extent permitted by law and hold harmless the Depositor, the Securities
Administrator, the Trustee, 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.
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 Trust 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.
78
(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 or the Certificate Registrar an affidavit in substantially
the form
attached hereto as Exhibit D-1 representing and warranting, among other
things,
that such transferee is not a Disqualified Organization, an agent or nominee
acting on behalf of a Disqualified Organization or 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, the Securities Administrator, any NIMS
Insurer
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 be
under no liability to any person for any registration or transfer of a
Residual
Certificate to a Disqualified Organization, agent or nominee thereof or
Non-permitted Foreign Holder or for the 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 a
Responsible Officer of 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, but not obligated, 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.
79
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 or the Certificate Registrar 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 or Residual Certificate, or an interest therein, by such Holder’s or
Owner’s acceptance thereof, shall be deemed for all purposes to have consented
to the provisions of this section.
(h) Notwithstanding
any provision to the contrary herein, so long as a Global Security representing
any Class M or Class B Certificate remains outstanding and is held by or
on
behalf of DTC, transfers of a Global Security representing any such
Certificates, in whole or in part, shall only be made in accordance with
Section
3.01 and this Section 3.03(h).
(i) Subject
to clauses (ii) and (iii) of this Section 3.03(h), transfers of a Global
Security representing any Class M or Class B Certificate shall be limited
to
transfers of such Global Security, in whole or in part, to nominees of
DTC or to
a successor of DTC or such successor’s nominee.
(ii) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited
with
or on behalf of DTC wishes at any time to exchange its interest in such
Restricted Global Security for an interest in a Regulation S Global Security,
or
to transfer its interest in such Restricted Global Security to a Person
who
wishes to take delivery thereof in the form of an interest in a Regulation
S
Global Security, such holder, provided such holder is not a U.S. person,
may,
subject to the rules and procedures of DTC, exchange or cause the exchange
of
such interest for an equivalent beneficial interest in the Regulation S
Global
Security. Upon receipt by the Trustee, as Certificate Registrar, of (I)
instructions from DTC directing the Trustee, as Certificate Registrar,
to be
credited a beneficial interest in a Regulation S Global Security in an
amount
equal to the beneficial interest in such Restricted Global Security to
be
exchanged but not less than the minimum denomination applicable to such
holder’s
Certificates held through a Regulation S Global Security, (II) a written
order
given in accordance with DTC’s procedures containing information regarding the
participant account of DTC and, in the case of a transfer pursuant to and
in
accordance with Regulation S, the Euroclear or Clearstream account to be
credited with such increase and (III) a certificate in the form of Exhibit
M-1
hereto given by the holder of such beneficial interest stating that the
exchange
or transfer of such interest has been made in compliance with the transfer
restrictions applicable to the Global Securities, including that the holder
is
not a U.S. person, and pursuant to and in accordance with Regulation S,
the
Trustee, as Certificate Registrar, shall reduce the principal amount of
the
Restricted Global Security and increase the principal amount of the Regulation
S
Global Security by the aggregate principal amount of the beneficial interest
in
the Restricted Global Security to be exchanged, and shall instruct Euroclear
or
Clearstream, as applicable, concurrently with such reduction, to credit
or cause
to be credited to the account of the Person specified in such instructions
a
beneficial interest in the Regulation S Global Security equal to the reduction
in the principal amount of the Restricted Global Security.
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(iii) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of DTC wishes at any time to transfer its interest in such
Regulation S Global Security to a Person who wishes to take delivery thereof
in
the form of an interest in a Restricted Global Security, such holder may,
subject to the rules and procedures of DTC, exchange or cause the exchange
of
such interest for an equivalent beneficial interest in a Restricted Global
Security. Upon receipt by the Trustee, as Certificate Registrar, of (I)
instructions from DTC directing the Trustee, as Certificate Registrar,
to cause
to be credited a beneficial interest in a Restricted Global Security in
an
amount equal to the beneficial interest in such Regulation S Global Security
to
be exchanged but not less than the minimum denomination applicable to such
holder’s Certificates held through a Restricted Global Security, to be
exchanged, such instructions to contain information regarding the participant
account with DTC to be credited with such increase, and (II) a certificate
in
the form of Exhibit M-2 hereto given by the holder of such beneficial interest
and stating, among other things, that the Person transferring such interest
in
such Regulation S Global Security reasonably believes that the Person acquiring
such interest in a Restricted Global Security is a QIB, is obtaining such
beneficial interest in a transaction meeting the requirements of Rule 144A
under
the Securities Act and in accordance with any applicable securities laws
of any
State of the United States or any other jurisdiction, then the Trustee,
as
Certificate Registrar, will reduce the principal amount of the Regulation
S
Global Security and increase the principal amount of the Restricted Global
Security by the aggregate principal amount of the beneficial interest in
the
Regulation S Global Security to be transferred and the Trustee, as Certificate
Registrar, shall instruct DTC, concurrently with such reduction, to credit
or
cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the Restricted Global Security equal to the reduction
in the principal amount of the Regulation S Global Security.
(iv) Other
Exchanges.
In the
event that a Global Security is exchanged for Certificates in definitive
registered form without interest coupons, pursuant to Section 3.09(c) hereof,
such Certificates may be exchanged for one another only in accordance with
such
procedures as are substantially consistent with the provisions above (including
certification requirements intended to insure that such transfers comply
with
Rule 144A under the Securities Act, comply with Rule 501(a)(1), (2), (3)
or (7)
or are to non-U.S. persons in compliance with Regulation S under the Securities
Act, as the case may be), and as may be from time to time adopted by the
Trustee.
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(v) Restrictions
on U.S. Transfers.
Transfers of interests in the Regulation S Global Security to U.S. persons
(as
defined in Regulation S) shall be limited to transfers made pursuant to
the
provisions of Section 3.03(h)(iii).
Section
3.04. Cancellation
of Certificates.
Any
Certificate surrendered for registration of transfer or exchange shall
be
cancelled and retained in accordance with the Trustee’s or the Certificate
Registrar’s 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 and the Authenticating
Agent
and any NIMS Insurer such security or indemnity as may be required by them
to
save each of them harmless, then, in the absence of notice to the Trustee
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.
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 Securities Administrator, the Trustee,
the
Certificate Registrar, any NIMS Insurer 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 none of the Depositor, the Master Servicer, the
Securities Administrator, the Trustee, the Certificate Registrar, any NIMS
Insurer or 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.
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(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.
(a) The
Trustee, subject to the consent of the NIMS Insurer, 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.
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. The
initial Paying Agent shall be the Trustee.
(b) Any
Paying Agent shall comply with its reporting obligations under Regulation
AB
with respect to the Trust Fund in form and substance similar to those of
the
Trustee pursuant to Section 6.20, and the related assessment of compliance
shall
cover, at a minimum, the elements of the servicing criteria applicable
to the
Paying Agent indicated in Exhibit S attached hereto. For so long as the
Depositor is subject to Exchange Act reporting requirements with respect
to the
Trust, the Paying Agent shall give prior written notice to the Sponsor,
the
Master Servicer, the Securities Administrator and the Depositor of the
appointment of any Subcontractor by it and a written description (in form
and
substance reasonably satisfactory to the Sponsor and the Depositor) of
the role
and function of each Subcontractor utilized by the Paying Agent, as applicable,
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.
In
addition, for so long as the Depositor is subject to Exchange Act reporting
requirements with respect to the Trust, the Paying Agent shall notify the
Sponsor, the Master Servicer, the Securities Administrator and the Depositor
within five (5) calendar days of knowledge thereof (i) of any legal proceedings
pending against the Paying Agent of the type described in Item 1117 (§ 229.1117)
of Regulation AB, (ii) any merger, consolidation or sale of substantially
all of
the assets of the Paying Agent and (iii) if the Paying Agent shall become
(but
only to the extent not previously disclosed) at any time an affiliate of
any of
the parties listed on Exhibit V hereto or any of their affiliates. On or
before
March 1st
of each
year, the Depositor shall furnish any change in the information in Exhibit
V to
the Paying Agent and the Securities Administrator.
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(c) Any
Paying Agent agrees to indemnify the Depositor, the Securities Administrator
and
the Master Servicer, and each of 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 the failure by such Paying
Agent
to deliver any information, report or certification when and as required
under
Section 6.20 and Section 9.25(a). This indemnification shall survive the
termination of this Agreement or the termination of such Paying Agent
hereunder.
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 Securities Administrator, the Paying
Agent,
the Registrar, any NIMS Insurer 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.
84
(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 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 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 any NIMS Insurer
and 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. Notwithstanding the foregoing, the Trustee, upon the instruction
of
the Depositor, shall have the right to issue Definitive Certificates on
the
Closing Date in connection with credit enhancement programs.
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 “Aurora
Loan Services LLC, as Master Servicer, in trust for the benefit of the
Holders
of Structured Asset Securities Corporation Mortgage Loan Trust 2007-WF2
Mortgage
Pass-Through Certificates, Series 2007-WF2.” The Collection Account shall relate
solely to the Certificates and to the Lower Tier REMIC 1 Uncertificated
Regular
Interests issued by the Trust Fund hereunder, and funds in such Collection
Account shall not be commingled with any other monies.
(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 10 days and transfer
all funds and investment property on deposit in such existing Collection
Account
into such new Collection Account.
85
(c) The
Master Servicer shall give to the Trustee and the Securities Administrator
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. 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 Securities Administrator for deposit into the Securities
Administration Account by wire transfer in immediately available funds.
The
Master Servicer, at its option, may choose to make daily remittances from
the
Collection Account to the Securities Administrator for deposit into the
Securities Administration Account.
(d) The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than the second Business Day following the Closing Date,
any
amounts received with respect to the Mortgage Loans representing Scheduled
Payments (or in the case of Simple Interest Mortgage Loans, representing
scheduled interest payments, but actual principal 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 Master Servicer 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, any
Subsequent Recovery and any Scheduled Payment attributable to principal
received
after its related Due Date on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans, including Prepayment
Premiums, in all cases, net of the Servicing Fee, if any, 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 the Servicer with respect to such Mortgage Loan under the
Servicing Agreement and retained by the Servicer;
(iv) all
Insurance Proceeds;
86
(v) all
Advances made by the Master Servicer or the Servicer pursuant to Section
5.04 or
the Servicing Agreement;
(vi) all
amounts paid by the Servicer with respect to Net Simple Interest Shortfalls
and
Prepayment Interest Shortfalls; and
(vii)
the
Purchase Price or FPD Purchase Price of any Mortgage Loan (including any
FPD
Premium) repurchased by the Depositor, the Seller, the Master Servicer,
the
Transferor or any other Person and any Substitution Amount related to any
Qualifying Substitute Mortgage Loan and
any
purchase price paid by any NIMS Insurer for the purchase of any Distressed
Mortgage Loan under Section 7.04.
The
Master Servicer shall also deposit from its own funds into the Collection
Account (to the extent not already received from the Servicer), without
right of
reimbursement, except from Net Simple Interest Excess, an amount equal
to any
Net Simple Interest Shortfall (to the extent not offset by Net Simple Interest
Excess) for the related Collection Period.
(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 Securities Administrator,
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
Holders of the Structured Asset Securities Corporation Mortgage Loan Trust
2007-WF2 Mortgage Pass-Through Certificates, Series 2007-WF2. 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, subject to Section 5.05 hereof, 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 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 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 the Servicer for Advances or Servicing Advances made
by it
or by the Servicer pursuant to Section 5.04 or the Servicing Agreement;
such
right to reimbursement pursuant to this subclause (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 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;
87
(ii) to
reimburse itself or the Servicer following a final liquidation of a Mortgage
Loan (except as otherwise provided in the Servicing Agreement) for any
previously unreimbursed Advances or Servicing Advances made by it or by
the
Servicer (A) that it 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 the Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Section 9.22(c) or
the
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
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
the
extent of any previous Advances made by the Master Servicer with respect
to
Simple Interest Mortgage Loans, to pay itself an amount equal to Net Simple
Interest Excess for the related Collection Period to the extent not offset
by
Net Simple Interest Shortfalls;
(v) to
reimburse itself or the Servicer for expenses incurred by and recoverable
by or
reimbursable to it or the Servicer pursuant to this Agreement, including,
without limitation, Sections 9.04, 9.05(b), 9.07(a), 9.30 or 11.15;
(vi) to
pay to
the Depositor or the Seller, 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 (or FPD Purchase Price), any FPD Premium (in the case of
a First
Payment Default Mortgage Loan), or any amounts paid by LBH for shortfalls
in the
Purchase Price for repurchases of First Payment Default Mortgage Loans
pursuant to Section 1.04(d) of the Mortgage Loan Sale Agreement relating
to the
Seller paying the difference if the FPD Purchase Price is less than the
Purchase
Price;
88
(vii)
subject
to Section 5.05, to pay to itself income earned on the investment of funds
deposited in the Collection Account;
(viii) to
make
payments to the Securities Administrator for deposit into the Securities
Administration Account in the amounts and in the manner provided
herein;
(ix) to
make
payment to itself, the Securities Administrator, the Trustee and others
pursuant
to any 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 the Trustee, the Securities Administrator and 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 Securities Administrator 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, the Trustee or the Securities Administrator or other successor
master
servicer thereto shall be prior to the rights of the Certificateholders;
and
(xiii) to
reimburse the Servicer for such amounts as are due thereto under the Servicing
Agreement and have not been retained by or paid to the Servicer, to the
extent
provided in the Servicing Agreement.
In
the
event that the Master Servicer fails on any Master Servicer Remittance
Date to
remit to the Securities Administrator any amounts required to be so remitted
to
the Securities Administrator pursuant to sub-clause (x) by such date, the
Master
Servicer shall pay the Securities Administrator, 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 Deposit Date.
The
Master Servicer shall only be required to pay the Securities Administrator
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 made pursuant to subclauses (i), (iii), (iv),
(vi)
and (vii) above, the Master Servicer’s, the 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 made from the Collection Account it maintains
pursuant
to such subclause (i), (iii), (iv), (vi) or (vii).
89
Section
4.03. Reports
to Certificateholders.
(a) On
each
Distribution Date, the Securities Administrator shall have prepared (based
solely on information provided by the Master Servicer, the Cap Counterparty
and
the Swap Counterparty or, in the case of clauses (xv) and (xix) below,
solely as
determined by the Securities Administrator) and shall make available
to the
Trustee, the Paying Agent, any NIMS Insurer, the Cap Counterparty, the
Swap
Counterparty, the Credit Risk Manager, the Seller and each Certificateholder
a
report (the “Distribution Date Statement”) setting forth the following
information (on the basis of Mortgage Loan level information obtained
from the
Master Servicer):
(ii) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Certificates allocable to interest and the calculation
thereof;
(iii) the
amount, if any, of any distribution to the Holders of the Class P Certificate,
the Class X Certificates, the Class LT-R Certificates and the Class R
Certificate;
(iv) (A) the
aggregate amount of any Advances required to be made as of the end of the
month
immediately preceding the month in which the Distribution Date occurs by
or on
behalf of the Servicer (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 Applied Loss
Amounts;
(vii) the
amount of any Prepayment Premiums distributed to the Class P Certificates;
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(viii) 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;
(ix) the
amount of the Servicing Fees and the Credit Risk Manager’s Fees paid during the
Collection Period to which such distribution relates;
(x) by
Mortgage Pool and in the aggregate, the number and aggregate outstanding
principal balance of Mortgage Loans, as reported to the Securities Administrator
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, all 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
(the
information in this item (x) to be calculated utilizing the OTS delinquency
method);
(xi) outstanding
principal balance of any Mortgage Loans with respect to which the related
Mortgaged 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;
(xii) with
respect to any modifications of Mortgage Loans within the 12 months prior
to
such Distribution Date, the information set for on Exhibit T
hereto;
(xiii) with
respect to any repurchases of Mortgage Loans in the preceding calendar
month,
the Scheduled Principal Balance of each Deleted Mortgage Loan, and 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;
(xiv) the
aggregate outstanding Carryforward Interest, Net Prepayment Interest Shortfalls,
Deferred Amounts, Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls,
if
any, for each Class of Certificates, after giving effect to the distribution
made on such Distribution Date;
(xv) the
Certificate Interest Rate applicable to such Distribution Date with respect
to
each Class of Certificates;
(xvi) with
respect to each Mortgage Pool, the Interest Remittance Amount and the Principal
Remittance Amount applicable to such Distribution Date;
(xvii) 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);
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(xviii) the
amount of any Overcollateralization Deficiency after giving effect to the
distributions made on such Distribution Date;
(xix) the
level
of LIBOR for such Distribution Date;
(xx) the
amount of any payments made by the Cap Counterparty to the Supplemental
Interest
Trust pursuant to Section 5.07(e);
(xxi) the
amount of any Net Swap Payment to the Supplemental Interest Trust made
pursuant
to Section 5.07, any Net Swap Payment to the Swap Counterparty made pursuant
to
Section 5.07, any Swap Termination Payment to the Supplemental Interest
Trust
made pursuant to Sections 5.07 and any Swap Termination Payment to the
Swap
Counterparty made pursuant to Section 5.07;
(xxii) the
aggregate amount of any insurance claim payments received with respect
to any
Primary Mortgage Insurance Policy during the related Collection
Period;
(xxiii) whether
a
Trigger Event is in effect for such Distribution Date; and
(xxiv) the
amount of any FPD Premiums, if any, for such Distribution Date.
In
addition to the information listed above, for every year in which the Depositor
is subject to Exchange Act reporting with respect to the Certificates,
such
Distribution Date Statement shall also include such other information as
is
required by Item 1121 (§ 229.1121) of Regulation AB to the extent that the
Securities Administrator shall have received any such information from
the
Depositor, the Sponsor, the Trustee, the Master Servicer, the Servicer,
the
Custodian, the Swap Counterparty or any Subservicer or Subcontractor therefor,
as applicable, no later than four Business Days prior to the Distribution
Date.
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vi)
above,
the amounts shall also (except in the case of the report delivered to the
holder
of the Class 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(c) Purchase Event,
the
information required by subclauses (i), (iii), (iv), (v), (vii), (viii),
(ix),
(x), (xi), (xii), (xv), (xvii), (xviii), (xix) and (xx) shall be made available
to the Trustee, the NIMS Insurer, the Swap Counterparty, the Credit Risk
Manager, the Seller, the holder of the Class LT-R Certificate and the
LTURI-holder with regard to the Lower Tier REMIC 1 Uncertificated Regular
Interests in lieu of the Certificates.
The
Securities Administrator shall make such report and any additional loan
level
information (and, at its option, any additional files containing the same
information in an alternative format) available each month to the Trustee,
any
NIMS Insurer, Certificateholders and the Rating Agencies via the Securities
Administrator’s internet website. The Securities Administrator’s internet
website shall initially be located at “xxx.xxxxxxx.xxx.”
Assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at 866-846-4526. 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.
The
Securities Administrator 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 Securities Administrator shall
provide
timely and adequate notification to all above parties regarding any such
changes.
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The
foregoing information and reports shall be prepared and determined by
the
Securities Administrator based solely on Mortgage Loan data provided
to the
Securities Administrator by the Master Servicer (in a format agreed to
by the
Securities Administrator and the Master Servicer) no later than 2:00
p.m.
Eastern Time four Business Days prior to the Distribution Date (or such
other
time period set forth in Section 9.23(b)), and on the information provided
to
the Securities Administrator by the Swap Counterparty and the Cap Counterparty.
In preparing or furnishing the foregoing information to the Trustee,
Certificateholders and any NIMS Insurer, the Securities Administrator
shall be
entitled to rely conclusively on the accuracy and completeness of the
information or data (i) regarding the Mortgage Loans (including any First
Payment Default Mortgage Loan) and the related REO Property, that has
been
provided to the Securities Administrator by the Master Servicer based
upon
information received by the Master Servicer from the Servicer, (ii) regarding
the Swap Agreement, that has been provided to the Securities Administrator
by
the Swap Counterparty and the Securities Administrator and (iii) regarding
the
Interest Rate Cap Agreement, that has been provided to the Securities
Administrator by the Cap Counterparty, and the Securities Administrator
shall
not be obligated to verify, recompute, reconcile or recalculate any such
information or data. The Master Servicer shall be entitled to conclusively
rely
on the Mortgage Loan data provided by the Servicers and shall have no
liability
for any errors in such Mortgage Loan data. The Securities Administrator
shall be
entitled to conclusively rely on the Mortgage Loan data provided by the
Master
Servicer and shall have no liability for any errors or omissions in such
Mortgage Loan data. The information and reports described in the first
paragraph
of this Section 4.03(a) shall be provided to the Trustee and the Paying
Agent
(if other than the Trustee) by the Securities Administrator no later
than 12:00
p.m. Eastern Time two Business Days prior to the Distribution Date.
(b) Upon
the
reasonable advance written request of any NIMS Insurer or any Certificateholder
that is a savings and loan, bank or insurance company, which request, if
received by the Trustee, shall be promptly forwarded to the Securities
Administrator, the Securities Administrator shall provide, or cause to
be
provided, (or, to the extent that such information or documentation is
not
required to be provided by the Servicer under the Servicing Agreement,
shall use
reasonable efforts to obtain such information and documentation from the
Servicer, and provide) to any NIMS Insurer and such Certificateholder such
reports and access to information and documentation regarding the Mortgage
Loans
as any NIMS Insurer or 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 an investment
in the
Certificates; provided,
however,
that the
Securities Administrator shall be entitled to be reimbursed by such
Certificateholder or any NIMS Insurer for the actual expenses incurred
in
providing such reports and access.
(c) Upon
request of a Certificateholder and prior to a Section 7.01(c) Purchase
Event,
the Trustee shall have prepared and the Trustee shall make available to
any NIMS
Insurer and each Person who at any time during the calendar year was a
Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to any NIMS Insurer
and the
Certificateholders pursuant to Sections 4.03(a)(i) and 4.03(a)(ii) on an
annual
basis as may be required to enable any NIMS Insurer and 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 also 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 forwards such information
in any
other format permitted by the Code. The Securities Administrator shall
provide
the Trustee with such information as is necessary for the Trustee to prepare
such reports (and the Trustee may rely solely upon such
information).
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(d) The
Securities Administrator shall furnish, to the extent reasonably available,
any
other information that is required by the Code and regulations thereunder
to be
made available to Certificateholders. The Master Servicer shall provide
the
Securities Administrator, to the extent reasonably available, such information
as is necessary for the Securities Administrator to prepare such reports
(and
the Securities Administrator may rely solely upon such
information).
(e) So
long
as not prohibited by applicable law, the Master Servicer shall provide
to the
Depositor or to any party designated by the Depositor, as promptly as
practicable upon the Depositor's request, any and all loan-level information
that the Depositor may request in any format reasonably requested by the
Depositor.
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, U.S. Bank National
Association, as Trustee, in trust for the benefit of the Holders of Structured
Asset Securities Corporation Mortgage Loan Trust 2007-WF2 Mortgage Pass-Through
Certificates, Series 2007-WF2” 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, subject to the rights of the Trustee
set
forth herein. 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 ten 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 the Lower Tier REMIC 1 Uncertificated Regular Interests
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
all
monies remitted by the Securities Administrator to the Trustee on the same
day
on which such monies are remitted to the Trustee, or if such day is not
a
Business Day, the Business Day immediately following the day on which,
any
monies are remitted by the Securities Administrator to the Trustee. The
Trustee
shall make withdrawals from the Certificate Account only for the following
purposes:
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(i) to
make
payment to itself pursuant to any provision of this Agreement or to reimburse
itself for any fees or expenses reimbursable to it pursuant to Section
6.12;
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 Section 6.14, in connection
with
any transfer of servicing, shall not be withdrawn from the Certificate
Account
during such Anniversary Year and paid to the Trustee and the Trustee’s
reimbursement for such excess amounts shall be made pursuant to Section
5.02
only in one or more subsequent Anniversary Years;
(ii) to
withdraw amounts deposited in the Certificate Account in error;
(iii) to
make
payments to itself or others pursuant to any provision of this
Agreement;
(iv) to
make
payments of any investment income or earnings on the Certificate Account
to the
Master Servicer pursuant to clause (c) of this Section 4.04;
(v) to
make
distributions to Certificateholders pursuant to Article V; and
(vi) to
clear
and terminate the Certificate Account pursuant to Section 7.02.
(c) Funds
in
the Certificate Account may be invested by the Trustee at the direction
of the
Master Servicer in Eligible Investments (which may be obligations of
the
Trustee). All such investments must be payable on demand or mature no
later than
one Business Day prior to the next Distribution 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 for each Distribution Date
shall be
compensation (1) to the Trustee, in payment of its Trustee Fee to the
extent not
paid by the Securities Administrator when due pursuant to Section 4.05(f)
and
(2) to the Master Servicer, any income and gain remaining. Subject to
the
preceding sentence, all income and gain realized from any such investment
for
each Distribution Date shall be subject to withdrawal by the Master Servicer
from time to time or, if not withdrawn by the Master Servicer, paid by
the
Trustee to the Master Servicer pursuant to clause (b)(iv) of this Section
4.04
by the end of the month in which such income and gain is realized.
Section
4.05. Securities
Administration Account.
(a) On
the
Closing Date, the Securities Administrator shall open and shall thereafter
maintain an account to be held in trust (the “Securities Administration
Account”), entitled “Xxxxx Fargo Bank, N.A., as Securities Administrator, in
trust for the benefit of the Holders of Structured Asset Securities Corporation
Mortgage Loan Trust 2007-WF2 Mortgage Pass-Through Certificates, Series
2007-WF2.” The Securities Administration Account shall relate solely to the
Certificates issued by the Trust Fund hereunder, and funds in such Securities
Administration Account shall not be commingled with any other
monies.
95
(b) The
Securities Administration Account shall be an Eligible Account. If an existing
Securities Administration Account ceases to be an Eligible Account, the
Securities Administrator shall establish a new Securities Administration
Account
that is an Eligible Account within 10 Business Days of notice thereof to
the
Securities Administrator, and shall transfer all funds on deposit in such
existing Securities Administration Account into such new Securities
Administration Account.
(c) The
Securities Administrator shall make withdrawals from the Securities
Administration Account only for the following purposes:
(i) to
withdraw amounts deposited in the Securities Administration Account in
error;
(ii) to
make
payments of any investment income or earnings on the Securities Administration
Account to (A) the Trustee to pay the Trustee Fee, if due, (B) the Custodian
to
pay the Custodial Compensation, if due and (C) then any remaining amounts
of
investment income or earnings to itself;
(iii) to
reimburse itself for any amounts reimbursable under the terms of this
Agreement;
(iv) to
make
payments to the Trustee for deposit into the Certificate Account pursuant
to
Section 4.04; and
(v) to
clear
and terminate the Securities Administration Account pursuant to Section
7.02.
(d) The
Securities Administrator shall give to the Trustee prior written notice
of the
name and address of the depository institution at which the Securities
Administration Account is maintained and the account number of such Securities
Administration Account. On each Deposit Date, the entire amount on deposit
in
the Securities Administration Account (less any amounts withdrawn pursuant
to
Section 4.05(c)(i) and (ii)), shall be remitted to the Trustee for deposit
into
the Certificate Account by wire transfer in immediately available funds.
The
Securities Administrator, at its option, may choose to make daily remittances
from the Securities Administration Account to the Trustee for deposit into
the
Certificate Account.
(e) The
Securities Administrator shall cause to be deposited into the Securities
Administration Account on the Master Servicer Remittance Date, any monies
remitted by the Master Servicer to the Securities Administrator on such
date
pursuant to the terms of this Agreement.
(f) The
Securities Administrator may invest, or cause to be invested, funds held
in the
Securities Administration Account, which funds, if invested, shall be invested
in Eligible Investments (which may be obligations of the Securities
Administrator or its Affiliate). All such investments must be payable on
demand
or mature no later than the next Deposit 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 for each Distribution Date shall
be
compensation (1) to the Trustee, in payment of its Trustee Fee, to the
extent
not paid when due in accordance with Section 6.12 and (2) to the Securities
Administrator, any income and gain remaining. The Securities Administrator
shall
pay to the Trustee the Trustee Fee and all income and gain realized from
any
such investments 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 Securities Administrator for deposit in the Securities
Administration Account out of its own funds, without any right of reimbursement
therefor, immediately as realized.
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ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
Section
5.01. Distributions
Generally.
(a) Subject
to Section 7.01 respecting the final distribution on the Certificates or
Lower
Tier REMIC 1 Uncertificated Regular Interests, on each Distribution Date
the
Trustee or the Paying Agent shall make allocations and/or distributions
in
accordance with the Preliminary Statement and this Article V and based
solely on
the reports for such Distribution Date provided to it by the Securities
Administrator pursuant to Section 4.03(a). Such distributions shall be
made by
wire transfer in immediately available funds to an account specified in
writing
to the Trustee at least five (5) Business Days prior to the first Distribution
Date to such Certificateholder and at the expense of such
Certificateholder.
(b) 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,
however,
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 Corporate Trust Office. If any payment
required to be made on the Certificates or Lower Tier REMIC 1 Uncertificated
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.
(c) All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates in such Class equally in proportion to their respective initial
Class Principal Amounts (or Percentage Interests).
(d) The
Trustee or the Paying Agent, as applicable, shall make payments to
Certificateholders and to the Swap Counterparty and any other person pursuant
to
this Article V and make deposits to the Supplemental Interest Trust and
accounts
held by it hereunder based solely on the information set forth in the monthly
report furnished by the Securities Administrator in accordance with Section
4.03(a), and shall be entitled to conclusively rely on such information
and
reports, and on the calculations contained therein, when making distributions
to
Certificateholders, the Swap Counterparty and any other party hereunder.
The
Trustee shall have no liability for any errors in such reports or information,
and shall not be required to verify, recompute, reconcile or recalculate
any
such information or data.
97
Section
5.02. Distributions
from the Certificate Account.
(a) On
each
Distribution Date on or prior to a Section 7.01(c) Purchase Event or a
Trust
Fund Termination Event, the Trustee (or the Paying Agent on behalf of the
Trustee) shall withdraw from the Certificate Account the Total Distribution
Amount (to the extent such amount is on deposit in the Certificate Account),
and
amounts that are available for payment to the Swap Counterparty, and shall
allocate such amount to the interests issued in respect of each REMIC created
pursuant to this Agreement and shall distribute such amount as specified
in
subparagraphs (b) through (g) of this Section 5.02; provided,
that
amounts that are available for payment to the Swap Counterparty shall be
paid on
the related Swap Payment Date. On each Distribution Date after a Section
7.01(c)
Purchase Event but on or prior to a Trust Fund Termination Event, the Trustee
(or the Paying Agent acting on behalf of the Trustee) shall withdraw from
the
Certificate Account the Total Distribution Amount (to the extent such amount
is
on deposit in the Certificate Account), and amounts that are available
for
payment to the Swap Counterparty, and shall allocate such amount to the
interests issued in respect of REMIC 1 created pursuant to this Agreement
and
shall distribute such amount as specified in subparagraphs (j) through
(l) of
this Section; provided,
that
amounts that are available for payment to the Swap Counterparty shall be
paid on
the related Swap Payment Date.
(b) On
each
Distribution Date (or, with respect to clauses (i) and (ii) below, on the
related Swap Payment Date), the Trustee shall distribute the Interest Remittance
Amount for Pool 1 and for such date in the following order of
priority:
(i) for
deposit into the Swap Account, an amount equal to the lesser of (x) the
product
of (A) the amount of 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 Date and (B) the Pool Percentage for Pool 1 for such
Distribution Date and (y) the Interest Remittance Amount for Pool 1 for
such
Distribution Date;
(ii) for
deposit into the Swap Account, the amount of 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 Date (after giving effect
to
distributions made pursuant to Section 5.02(b)(i) above and Section 5.02(c)(i)
below for such Distribution Date);
(iii) to
the
Class A1 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date; and
(iv) for
application pursuant to Section 5.02(d) below, any Interest Remittance
Amount
for Pool 1 remaining undistributed after application pursuant to clauses
(i)
through (iii) of this Section 5.02(b) for such Distribution Date.
98
(c) On
each
Distribution Date (or with respect to clauses (i) and (ii) below, on the
related
Swap Payment Date), the Trustee shall distribute the Interest Remittance
Amount
for Pool 2 and for such date in the following order of priority:
(i) for
deposit into the Swap Account, an amount equal to the lesser of (x) the
product
of (A) the amount of 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 Date and (B) the Pool Percentage for Pool 2 for such
Distribution Date and (y) the Interest Remittance Amount for Pool 2 for
such
Distribution Date;
(ii) for
deposit into the Swap Account, the amount of 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 Date (after giving effect
to
distributions made pursuant to Sections 5.02(b)(i) and 5.02(c)(i) above
for such
Distribution Date);
(iii) concurrently,
on a pro
rata
basis,
to Class A2, Class A3 and Class A4 Certificates, Current Interest and any
Carryforward Interest for each such Class and 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 have otherwise been
distributed thereon; and
(iv) for
application pursuant to Section 5.02(d) below, any Interest Remittance
Amount
for Pool 2 remaining undistributed after application pursuant to clauses
(i)
through (iii) of this Section 5.02(c) for such Distribution Date.
(d) On
each
Distribution Date, the Trustee shall distribute the aggregate of any remaining
Interest Remittance Amounts from Sections 5.02(b)(iv) and 5.02(c)(iv) above
in
the following order of priority:
(i) concurrently, on
a
pro
rata basis,
to
each Class of Senior Certificates, Current Interest and any Carryforward
Interest (taking into account distributions pursuant to Sections 5.02(b)(iii)
and 5.02(c)(iii) above) for each such Class and 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 have otherwise been distributed
thereon;
(ii) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
Current Interest and any Carryforward Interest for each such Class and
such
Distribution Date;
(iii) to
the
Credit Risk Manager, the Credit Risk Manager’s Fee;
(iv) to
the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee; and
99
(v) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (f) of this Section 5.02, any Interest Remittance
Amount
remaining undistributed for such Distribution Date.
(e) On
each
Distribution Date or related Swap Payment Date, as applicable, the Trustee
shall
distribute the Principal Distribution Amount with respect to each Mortgage
Pool
for such date as follows:
(i) On
each
Distribution Date (or, with respect to clauses (A)(1), (A)(2), (B)(1) and
(B)(2)
below of this Section 5.02(e), on the related Swap Payment Date) (a) prior
to
the Stepdown Date or (b) with respect to which a Trigger Event is in effect,
until the aggregate Certificate Principal Amount of the LIBOR Certificates
equals the Target Amount for such Distribution Date, the Trustee shall
make the
following distributions, concurrently:
(A) For
Pool 1:
The
Principal Distribution Amount for Pool 1 will be distributed in the following
order of priority:
(1) for
deposit into the Swap Account, an amount equal to the lesser of (x) the
product
of (A) the amount of 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 Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (B) the Pool
Percentage for Pool 1 for such Distribution Date and (y) the Principal
Remittance Amount for Pool 1 for such Distribution Date;
(2) for
deposit into the Swap Account, the amount of 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 Date (after giving effect
to
distributions made pursuant to Sections 5.02(e)(i)(A)(1) above and
5.02(e)(i)(B)(1) below, and to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date);
(3) to
the
Class A1 Certificates, until the Class Principal Amount of each such Class
has
been reduced to zero; and
(4) for
application pursuant to Section 5.02(e)(ii) below, any such Principal
Distribution Amount for Pool 1 remaining undistributed for such Distribution
Date.
(B) For
Pool 2:
The
Principal Distribution Amount for Pool 2 will be distributed in the following
order of priority:
(1) for
deposit into the Swap Account, an amount equal to the lesser of (x) the
product
of (A) the amount of 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 Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (B) the Pool
Percentage for Pool 2 for such Distribution Date and (y) the Principal
Remittance Amount for Pool 2 for such Distribution Date;
100
(2) for
deposit into the Swap Account, the amount of 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 Date (after giving effect
to
distributions made pursuant to Sections 5.02(e)(i)(A)(1) and 5.02(e)(i)(B)(1)
above, and to the extent not paid previously or from the Interest Remittance
Amount for such Distribution Date);
(3) sequentially,
to the Class A2, Class A3 and Class A4 Certificates, in that order, until
the
Class Principal Amount of each such Class has been reduced to zero;
and
(4) for
application pursuant to Section 5.02(e)(ii) below, any such Principal
Distribution Amount for Pool 2 remaining undistributed for such Distribution
Date.
(ii) On
each
Distribution Date, the Trustee shall distribute the aggregate of any remaining
Principal Distribution Amounts from Sections 5.02(e)(i)(A)(4) and
5.02(e)(i)(B)(4) above, in the following order of priority:
(A) concurrently,
on a pro
rata
basis,
in proportion to the aggregate Class Principal Amount of the Group 1 Senior
Certificates and the Group 2 Senior Certificates related to each such Group,
after giving effect to principal distributions on such Distribution Date
pursuant to Sections 5.02(e)(i)(A)(3) and 5.02(e)(i)(B)(3) above, to the
Group 1
Senior Certificates and the Group 2 Senior Certificates, in each case in
accordance with the Related Senior Priority, until the Class Principal
Amount of
each such Class has been reduced to zero;
(B) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
until the Class Principal Amount of each such Class has been reduced to
zero;
and
(C) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (f) of
this
Section 5.02, any Principal Distribution Amount remaining after application
pursuant to clauses (A) and (B) of this Section 5.02(e)(ii).
(iii) Any
Principal Distribution Amount remaining on any Distribution Date after
the
Target Amount is achieved will be applied as part of Monthly Excess Cashflow
for
such Distribution Date as provided in subsection (f) of this Section
5.02.
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(iv) On
each
Distribution Date (or, with respect to clauses (A) and (B) below, on the
related
Swap Payment Date) (a) on or after the Stepdown Date and (b) with respect
to
which a Trigger Event is not in effect, the Principal Distribution Amount
for
each Mortgage Pool for such date will be distributed in the following order
of
priority:
(A) for
deposit into the Swap Account, an amount equal to the lesser of (x) the
product
of (1) the amount of 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 Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (2) the Pool
Percentage for the related Mortgage Pool for such Distribution Date and
(y) the
Principal Remittance Amount for such Mortgage Pool for such Distribution
Date;
(B) for
deposit into the Swap Account, the amount of 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 Date (after giving effect
to
distributions made pursuant to Section 5.02(e)(iv)(A) above and to the
extent
not paid previously or from the Interest Remittance Amounts for such
Distribution Date);
(C) so
long
as any of the Subordinate Certificates are outstanding, to the Group 1
Senior
Certificates (from amounts generated by Pool 1, except as provided below)
and to
the Group 2 Senior Certificates (from amounts generated by Pool 2, except
as
provided below) in accordance with the Related Senior Priority in each
case an
amount equal to the lesser of (x) the excess of (a) the Principal Distribution
Amount for the related Mortgage Pool for such Distribution Date over (b)
the
amount paid to the Supplemental Interest Trust for deposit into the Swap
Account
on the related Swap Payment Date pursuant to clauses (A) and (B) above
and (y)
the Related Senior Principal Distribution Amount for such Mortgage Pool
for such
Distribution Date, in each case, until the Class Principal Amount of each
such
Class has been reduced to zero; provided,
however,
to the
extent that the Principal Distribution Amount for a Mortgage Pool exceeds
the
Related Senior Principal Distribution Amount for such Mortgage Pool, such
excess
shall be applied to the Senior Certificates related to the other Mortgage
Pool
(in accordance with the Related Senior Priority), but in an amount not
to exceed
the Senior Principal Distribution Amount for such Distribution Date (as
reduced
by any distributions pursuant to subclauses (x) or (y) of this clause (1)
on
such Distribution Date); or (2) if none of the Subordinate Certificates
are
outstanding, to the Group 1 Senior Certificates and the Group 2 Senior
Certificates (in each case in accordance with the Related Senior Priority),
the
excess of (A) the Principal Distribution Amount for the related Mortgage
Pool
for such Distribution Date over (B) the amount paid to the Supplemental
Interest
Trust for deposit into the Swap Account for the related Mortgage Pool on
the
related Swap Payment Date pursuant to clauses (A) and (B) of this Section
5.02(e)(iv) above, in each case until the Class Principal Amount of each
such
Class has been reduced to zero;
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(D) to
the
Class M1 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates on such date pursuant to clauses (A) through (C) of this Section
5.02(e)(iv) above, and (y) the M1 Principal Distribution Amount for such
date,
until the Class Principal Amount of each such Class has been reduced to
zero;
(E) to
the
Class M2 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1 Certificates on such date pursuant to clauses
(A)
through (D) of this Section 5.02(e)(iv) above, and (y) the M2 Principal
Distribution Amount for such date, until the Class Principal Amount of
such
Class has been reduced to zero;
(F) to
the
Class M3 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1 and Class M2 Certificates on such date pursuant
to
clauses (A) through (E) of this Section 5.02(e)(iv) above, and (y) the
M3
Principal Distribution Amount for such date, until the Class Principal
Amount of
such Class has been reduced to zero;
(G) to
the
Class M4 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2 and Class M3 Certificates on such
date
pursuant to clauses (A) through (F) of this Section 5.02(e)(iv) above,
and (y)
the M4 Principal Distribution Amount for such date, until the Class Principal
Amount of such Class has been reduced to zero;
(H) to
the
Class M5 Certificates, an amount equal to the lesser of (x) the excess of
(a) the aggregate of the Principal Distribution Amounts for Pool 1 and
Pool 2
for such Distribution Date over (b) the amount paid to the Supplemental
Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3 and Class M4 Certificates
on
such date pursuant to clauses (A) through (G) of this Section 5.02(e)(iv)
above,
and (y) the M5 Principal Distribution Amount for such date, until the Class
Principal Amount of such Class has been reduced to zero;
(I) to
the
Class M6 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4 and Class M5
Certificates on such date pursuant to clauses (A) through (H) of this Section
5.02(e)(iv) above, and (y) the M6 Principal Distribution Amount for such
date,
until the Class Principal Amount of such Class has been reduced to zero;
103
(J) to
the
Class M7 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5 and
Class
M6 Certificates on such date pursuant to clauses (A) through (I) of this
Section
5.02(e)(iv) above, and (y) the M7 Principal Distribution Amount for such
date,
until the Class Principal Amount of such Class has been reduced to
zero;
(K) to
the
Class M8 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6
and Class M7 Certificates on such date pursuant to clauses (A) through
(J) of
this Section 5.02(e)(iv) above, and (y) the M8 Principal Distribution Amount
for
such date, until the Class Principal Amount of such Class has been reduced
to
zero;
(L) to
the
Class M9 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6,
Class M7 and Class M8 Certificates on such date pursuant to clauses (A)
through
(K) of this Section 5.02(e)(iv) above, and (y) the M9 Principal Distribution
Amount for such date, until the Class Principal Amount of such Class has
been
reduced to zero;
(M) to
the
Class B1 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6,
Class M7, Class M8 and Class M9 Certificates on such date pursuant to clauses
(A) through (L) of this Section 5.02(e)(iv) above, and (y) the B1 Principal
Distribution Amount for such date, until the Class Principal Amount of such
Class has been reduced to zero;
104
(N) to
the
Class B2 Certificates, an amount equal to the lesser of (x) the excess
of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6,
Class M7, Class M8, Class M9 and Class B1 Certificates on such date pursuant
to
clauses (A) through (M) of this Section 5.02(e)(iv) above, and (y) the
B2
Principal Distribution Amount for such date, until the Class Principal
Amount of
such Class has been reduced to zero; and
(O) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in Section 5.02(f), any Principal Distribution Amount remaining
after
application pursuant to clauses (A) through (N) of this Section 5.02(e)(iv)
above.
(v) Any
Principal Distribution Amount remaining on any Distribution Date after
the
Target Amount is achieved will be applied as part of Monthly Excess Cashflow
for
such Distribution Date as provided in subsection (f) of this Section
5.02.
(f) On
each
Distribution Date, the Trustee shall distribute the Monthly Excess Cashflow
for
such date in the following order of priority:
(i) for
each
Distribution Date occurring (a) before the Stepdown Date or (b) on or after
the Stepdown Date but for which a Trigger Event is in effect, then until
the
aggregate Certificate Principal Amount of the LIBOR Certificates equals
the
Target Amount for such Distribution Date, in the following order of
priority:
(A) concurrently,
to the Group 1 Senior Certificates and the Group 2 Senior Certificates,
in
proportion to the aggregate Class Principal Amount of the Senior Certificates
related to each Group, after giving effect to previous principal distributions
on such Distribution Date pursuant to Section 5.02(e)(ii)(A) above, to
the Group
1 Senior Certificates and the Group 2 Senior Certificates, in each case
in
accordance with the Related 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
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
in reduction of their respective Class Principal Amounts, until the Class
Principal Amount of each such Class has been reduced to zero.
(ii) for
each
Distribution Date occurring on or after the Stepdown Date and for which
a
Trigger Event is not in effect, in the following order of priority:
(A) concurrently,
to the Group 1 Senior Certificates and the Group 2 Senior Certificates,
in
proportion to the aggregate Class Principal Amount of the Senior Certificates
related to each such Group, after giving effect to previous principal
distributions on such Distribution Date pursuant to Section 5.02(e)(iv)(C)
above, to the Group 1 Senior Certificates and the Group 2 Senior Certificates,
in each case in accordance with the Related Senior Priority, in reduction
of
their respective Class Principal Amounts, until the aggregate Class Principal
Amount of each such Class, after giving effect to distributions on such
Distribution Date, equals the Senior Target Amount;
105
(B) to
the
Class M1 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amounts of the Senior Certificates and the Class
M1
Certificates, after giving effect to distributions on such Distribution
Date,
equals the M1 Target Amount;
(C) to
the
Class M2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class
M1 and
Class M2 Certificates, after giving effect to distributions on such Distribution
Date, equals the M2 Target Amount;
(D) to
the
Class M3 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class
M1,
Class M2 and Class M3 Certificates, after giving effect to distributions
on such
Distribution Date, equals the M3 Target Amount;
(E) to
the
Class M4 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class
M1,
Class M2, Class M3 and Class M4 Certificates, after giving effect to
distributions on such Distribution Date, equals the M4 Target Amount;
(F) to
the
Class M5 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class
M1,
Class M2, Class M3, Class M4 and Class M5 Certificates, after giving effect
to
distributions on such Distribution Date, equals the M5 Target Amount;
(G) to
the
Class M6 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class
M1,
Class M2, Class M3, Class M4, Class M5 and Class M6 Certificates, after
giving
effect to distributions on such Distribution Date, equals the M6 Target
Amount;
(H) to
the
Class M7 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class
M1,
Class M2, Class M3, Class M4, Class M5, Class M6 and Class M7 Certificates,
after giving effect to distributions on such Distribution Date, equals
the M7
Target Amount;
(I) to
the
Class M8 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class
M1,
Class M2, Class M3, Class M4, Class M5, Class M6, Class M7 and Class M8
Certificates, after giving effect to distributions on such Distribution
Date,
equals the M8 Target Amount;
106
(J) to
the
Class M9 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class
M1,
Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class M8 and
Class
M9 Certificates, after giving effect to distributions on such Distribution
Date,
equals the M9 Target Amount;
(K) to
the
Class B1 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class
M1,
Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class M8, Class
M9
and Class B1 Certificates, after giving effect to distributions on such
Distribution Date, equals the B1 Target Amount; and
(L) to
the
Class B2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class
M1,
Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class M8, Class
M9,
Class B1 and Class B2 Certificates, after giving effect to distributions
on such
Distribution Date, equals the B2 Target Amount;
(iii) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
any Deferred Amount for each such Class and such Distribution Date;
(iv) to
the
Basis Risk Reserve Fund, an amount equal to the Basis Risk Payment for
such
Distribution Date, and then from the Basis Risk Reserve Fund, in the following
order of priority:
(A) concurrently,
in proportion to their respective Basis Risk Shortfalls and Unpaid Basis
Risk
Shortfalls, to each Class of Senior Certificates, any applicable Basis
Risk
Shortfall and Unpaid Basis Risk Shortfall for each such Class and such
Distribution Date;
(B) to
each
Class of 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; and
(C) to
the
Swap Account, for application pursuant to Section 5.02(g)(xi), any amounts
remaining in the Basis Risk Reserve Fund, after taking into account
distributions pursuant to clauses (A) and (B) above, in excess of the
Required Reserve Fund Deposit for such Distribution Date;
(v) on
the
Distribution Date occurring in September 2010 (or the next succeeding
Distribution Date on which sufficient funds are available in the Certificate
Account to make such distributions to the Class P Certificates), $100 to
the
Class P Certificates in payment of its Class P Principal Amount;
(vi) to
the
Swap Account, the Class X Distributable Amount (less any Basis Risk Payment
for
such Distribution Date) for such Distribution Date, for application pursuant
to
Sections 5.02(g)(x) and 5.02(g)(xi) below, sequentially and in that order;
and
107
(vii) to
the
Class LT-R Certificate, any amount remaining on such date after application
pursuant to clauses (i) through (vi) above to the extent attributable to
REMIC
1, and otherwise to the Class R Certificates.
(g) 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 Swap Amount
for
such date in the following order of priority:
(i) to
the
Swap Counterparty, any Net Swap Payment owed to the Swap Counterparty pursuant
to the Swap Agreement for such Swap Payment Date;
(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
for
such Swap Payment Date;
(iii) concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such Class and such Distribution Date, to the extent unpaid (any shortfall
in Current Interest and Carryforward Interest to be allocated among such
Classes
in proportion to the amount of Current Interest and Carryforward Interest
that
would have otherwise been distributable thereon);
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority,
Current
Interest and any Carryforward Interest for each such Class and such Distribution
Date to the extent unpaid;
(v) to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount as specified in Sections 5.02(f)(i) and 5.02(f)(ii)
above 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(g)(v)
and all
amounts distributed pursuant to Sections 5.02(g)(vi), 5.02(h)(iii) and
5.02(h)(iv) shall not exceed the aggregate amount of cumulative Realized
Losses
incurred from the Cut-off Date through the last day of the related Collection
Period less any amounts previously distributed pursuant to this Section
5.02(g)(v) and Section 5.02(g)(vi), together with any amounts previously
distributed pursuant to Sections 5.02(h)(iii) and 5.02(h)(iv);
(vi) to
the
Subordinate Certificates, in accordance with the Subordinate Priority,
any
Deferred Amount for each such Class and such Distribution Date, to the
extent
unpaid after giving effect to distributions pursuant to Section 5.02(f)(iii)
above; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(g)(vi)
and all
amounts distributed pursuant to Sections 5.02(g)(v), 5.02(h)(iii) and
5.02(h)(iv) shall not exceed the aggregate amount of cumulative Realized
Losses
incurred from the Cut-off Date through the last day of the related Collection
Period less any amounts previously distributed pursuant to this Section
5.02(g)(vi) and Section 5.02(g)(v), together with any amounts previously
distributed pursuant to Sections 5.02(h)(iii) and 5.02(h)(iv);
108
(vii) to
the
Senior Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such Class for such Distribution Date, for application pursuant
to the
priorities set forth in Section 5.02(f)(iv)(A) above, to the extent unpaid
after
giving effect to distributions pursuant to such Section;
(viii) to
the
Subordinate Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls for each such Class and for such Distribution Date, for application
pursuant to the priorities set forth Section 5.02(f)(iv)(B) above, to the
extent
unpaid after giving effect to distributions pursuant to such
Section;
(ix) to
the
Swap Termination Receipts Account for application to the purchase of a
replacement swap agreement pursuant to Section 5.09(a) (if
necessary);
(x) to
the
Swap Counterparty, any unpaid Swap Termination Payment due to a Swap
Counterparty Trigger Event owed to the Swap Counterparty pursuant to the
Swap
Agreement;
(xi) to
the
Class X Certificates, any remaining amount deposited into the Swap Account
pursuant to Sections 5.02(f)(iv)(C) or 5.02(f)(vi) and any remaining Swap
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 X Certificates, all
amounts
remaining in the Swap Account.
(h) On
each
Distribution Date, the Trustee shall distribute the Interest Rate Cap Amount
for
such date after making all distributions under Section 5.02(g) above as
follows:
(i) concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such Class for such Distribution Date, to the extent unpaid pursuant
to
Section 5.02(g)(iii) above (any shortfall in Current Interest and Carryforward
Interest to be allocated among such Classes in proportion to the amount
of
Current Interest and Carryforward Interest that would have otherwise been
distributable thereon);
(ii) to
the
Subordinate Certificates, in accordance with the Subordinate Priority,
Current
Interest and any Carryforward Interest for such Class and such Distribution
Date
to the extent unpaid;
(iii) to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount specified in Sections 5.02(f)(i) and 5.02(f)(ii)
above for such Distribution Date, for application pursuant to the priorities
set
forth in such Sections; provided,
however,
that
the sum of all such amounts distributed pursuant to this Section 5.02(h)(iii)
and all amounts distributed pursuant to Sections 5.02(h)(iv), 5.02(g)(v)
and
5.02(g)(vi) shall not exceed the aggregate amount of cumulative Realized
Losses
incurred from the Cut-off Date through the last day of the related Collection
Period less any amounts previously distributed pursuant to this Section
5.02(h)(iii) and Section 5.02(h)(iv), together with any amounts previously
distributed pursuant to Sections 5.02(g)(v) and 5.02(g)(vi);
109
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority,
any
Deferred Amount for each such Class and such Distribution Date to the extent
unpaid; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(h)(iv)
and all
amounts distributed pursuant to Section 5.02(h)(iii) and Sections 5.02(g)(v)
and
5.02(g)(vi) shall not exceed the aggregate amount of cumulative Realized
Losses
incurred from the Cut-off Date through the last day of the related Collection
Period less any amounts previously distributed pursuant to this Section
5.02(h)(iv) and Section 5.02(h)(iii) together with any amounts previously
distributed pursuant to Sections 5.02(g)(v) and 5.02(g)(vi);
(v) to
the
Senior Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such Class and for such Distribution Date, for application pursuant
to
the priorities set forth in Section 5.02(f)(iv)(A), to the extent
unpaid;
(vi) to
the
Subordinate Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls for each such Class and for such Distribution Date, for application
pursuant to the priorities set forth in Section 5.02(f)(iv)(B), to the
extent
unpaid;
(vii) to
the
Cap Termination Receipts Account for the purchase of a replacement cap
agreement
pursuant to Section 5.09(b) (if necessary); and
(viii) to
the
Class X Certificates, any remaining Interest Rate Cap Amount.
(i) On
each
Distribution Date, an amount equal to the aggregate of all Prepayment Premiums
collected during the preceding Prepayment Period shall be distributed to
the
Class P Certificates.
(j) On
each
Distribution Date occurring after a Section 7.01(c) 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
Total
Distribution Amount (to the extent such amount is on deposit in the Certificate
Account) and amounts available for payment to the Swap Counterparty, and
shall
allocate such amount to the interests issued in respect of the Lower Tier
REMIC
1 Uncertificated Regular Interests created pursuant to this Agreement and
shall
distribute such amount first,
for
deposit into the Swap Account, an amount equal to any Net Swap Payment
or Swap
Termination Payment owed to the Swap Counterparty on the related Swap Payment
Date, second,
to the
Credit Risk Manager, the Credit Risk Manager’s Fee, third,
to the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee and fourth,
to the
LTURI-holder, any remaining Total Distribution Amount to the extent payable
on
the Lower Tier REMIC 1 Uncertificated Regular Interests as provided in
the
Preliminary Statement, and fifth,
to the
Class LT-R Certificates.
(k) On
each
Swap Payment Date occurring after a Section 7.01(c) Purchase Event but
on or
prior to a Trust Fund Termination Event, the Trustee shall distribute the
Swap
Amount for such date first,
to the
Swap Counterparty to pay any Net Swap Payment owed to the Swap Counterparty
pursuant to the Swap Agreement for such Swap Payment Date; second,
to the
Swap Counterparty, to pay any Swap Termination Payment owed to the Swap
Counterparty pursuant to the Swap Agreement for such Swap Payment Date,
third,
if
applicable, to the Swap Termination Receipts Account, for application to
the
purchase of a replacement swap agreement pursuant to Section 5.09(a); and
fourth,
any
remaining amount of Swap Amount, to the LTURI-holder.
110
(l) On
each
Distribution Date occurring after a Section 7.01(c) Purchase Event but
on or
prior to a Trust Fund Termination Event, the Trustee shall distribute any
amounts received from the Cap Counterparty under the Interest Rate Cap
Agreement
for such Distribution Date first,
to the
Cap Termination Receipts Account, for application to the purchase of a
replacement cap agreement pursuant to Section 5.09(b); and second,
any
remaining amount from the Cap Counterparty under the Interest Rate Cap
Agreement, to the LTURI-holder.
(m) On
each
Distribution Date, an amount equal to the aggregate FPD Premiums collected
during the preceding Prepayment Period shall be distributed to the Class
X
Certificates.
Section
5.03. Allocation
of Losses.
On
each
Distribution Date, the Class Principal Amounts of the Subordinate Certificates
will be reduced by the amount of any Applied Loss Amount for such date,
in the
following order of priority:
(i) to
the
Class B2 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(ii) to
the
Class B1 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(iii) to
the
Class M9 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(iv) to
the
Class M8 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(v) to
the
Class M7 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(vi) to
the
Class M6 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(vii) to
the
Class M5 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(viii) to
the
Class M4 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(ix) to
the
Class M3 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
111
(x) to
the
Class M2 Certificates, until the Class Principal Amount thereof has been
reduced
to zero; and
(xi) to
the
Class M1 Certificates, until the Class Principal Amount thereof has been
reduced
to zero.
Section
5.04. Advances
by Master Servicer, Servicer and Securities Administrator.
(a) Subject
to Section 9.07, Advances shall be made in respect of each Master Servicer
Remittance Date as provided herein. If, on any Determination Date, the
Servicer
determines that any Scheduled Payments (or in the case of Simple Interest
Mortgage Loans, the amount of any scheduled interest payments) due during
the
related Collection Period (other than Balloon Payments) have not been received,
the Servicer shall advance such amount to the extent provided in the Servicing
Agreement. If the Servicer fails to remit Advances required to be made
under the
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. 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 Securities
Administrator from its own funds (or funds advanced by the Servicer) for
deposit
in the Securities Administration 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 Securities Administrator for deposit in the Securities
Administration 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 Securities Administrator for deposit in the Securities
Administration 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 the 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.
(b) In
the
event that the Master Servicer or the 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 Securities Administrator, 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
Servicer that would have been deposited in such Certificate Account over
(b) the
amount of any Advance made by the Master Servicer or the Servicer with
respect
to such Distribution Date; provided,
however,
that the
Securities Administrator 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 Securities Administrator shall be entitled to be reimbursed
from
the Collection Account and/or the Certificate Account for Advances made
by it
pursuant to this Section 5.04 as if it were the Master Servicer.
112
Section
5.05. Compensating
Interest Payments.
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicer. Any Compensating Interest Payments made
by
the Servicer shall be a component of the Interest Remittance
Amount.
Section
5.06. Basis
Risk Reserve Fund.
(a) On
the
Closing Date, the Trustee shall establish and maintain in its name, in
trust for
the benefit of the Certificateholders, a Basis Risk Reserve Fund, into
which
Xxxxxx Brothers Holdings Inc. (“LBH”) shall initially deposit $1,000. The 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 monies, including, without limitation, other monies of the Trustee
held
pursuant to this Agreement.
(b) The
Trustee (or Paying Agent) shall make withdrawals from the Basis Risk Reserve
Fund to make distributions pursuant to Section 5.02(f)(iv) hereof in accordance
with the Distribution Date reports prepared by the Securities
Administrator.
(c) Funds
in
the Basis Risk Reserve Fund shall be invested in Eligible Investments.
Any
earnings on such amounts shall be distributed on each Distribution Date
to the
Holders of the Class X Certificates. The Class X Certificates shall evidence
ownership of the Basis Risk Reserve Fund for federal income tax purposes
and LBH
on behalf of the Holder 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 Basis Risk Reserve Fund, such
funds
shall be invested in the U.S. Bank First American Prime Obligation Fund,
Class
A. The Basis Risk Reserve Fund shall be terminated after the earlier of
(A) a
Section 7.01(c) Purchase Event or (B) a Trust Fund Termination Event, and
any
funds remaining in such fund upon such termination shall be released to
Holders
of the Class X Certificates.
Section
5.07. 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
Certificateholders and the Swap Counterparty. The Trustee, as trustee of
the
Supplemental Interest Trust, shall establish an account (the “Swap Account”),
into which LBH shall initially deposit $1,000. The Swap Account shall be
an
Eligible Account, and funds on deposit therein shall be held separate and
apart
from, and shall not be commingled with, any other monies, including, without
limitation, other monies of the Trustee held pursuant to this
Agreement.
(b) In
addition, the Trustee, as trustee of the Supplemental Interest Trust, shall
establish an account (the “Interest Rate Cap Account”), into which LBH shall
initially deposit $1,000. The Interest Rate Cap Account shall be an Eligible
Account, and funds on deposit therein shall be held separate and apart
from, and
shall not be commingled with, any other monies, including, without limitation,
other monies of the Trustee held pursuant to this Agreement.
113
(c) In
addition, on the Closing Date, the Trustee, on behalf of the Supplemental
Interest Trust, shall establish an account (the “Collateral
Account”)
into
which funds shall be deposited pursuant to Section 5.07(h). The Collateral
Account shall be an Eligible Account, and funds on deposit therein shall
be held
separate and apart from, and shall not be commingled with, any other monies,
including, without limitation, other monies of the Trustee held pursuant
to this
Agreement.
(d) The
Trustee shall deposit into the Swap Account any Net Swap Payment required
pursuant to Sections 5.02(b), (c), (e), (j) and (k), any Swap Termination
Payment required pursuant to Sections 5.02(b), (c), (e) (j) and (k), any
amounts
received from the Swap Counterparty under the Swap Agreement and any amounts
distributed from the Basis Risk Reserve Fund required pursuant to Sections
5.02(f)(iv)(C) and (f)(vi), and shall distribute from the Swap Account
any Net
Swap Payment required pursuant to Sections 5.02(g)(i), 5.02(j) or 5.02(k),
as
applicable, or Swap Termination Payment required pursuant to Sections
5.02(g)(ii), 5.02(g)(x), 5.02(j) or 5.02(k), as applicable. Notwithstanding
the
foregoing, the initial deposit of $1,000 made pursuant to subsection (a)
above
may be applied by the Trustee to make such distributions of any Net Swap
Payment
or any Swap Termination Payment.
(e) The
Trustee shall deposit into the Interest Rate Cap Account any amounts received
from the Cap Counterparty under the Interest Rate Cap Agreement.
(f) Funds
in
the Swap Account shall be invested in Eligible Investments. Any earnings
on such
amounts shall be distributed on each Distribution Date pursuant to Section
5.02(g), (j) or (k), as applicable. The Class X Certificates shall evidence
ownership of the Swap Account for federal income tax purposes and the Holder
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 the Class X
Certificateholders as to investment of funds on deposit in the Swap Account,
such funds shall be invested in the U.S. Bank First American Prime Obligations
Fund, Class A or comparable investment vehicle. Any amounts on deposit
in the
Swap Account in excess of the Swap Amount on any Distribution Date shall
be held
for distribution pursuant to Section 5.02(g), (j) or (k), as applicable,
on the
following Distribution Date.
(g) Funds
in
the Interest Rate Cap 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) or Section 5.02(l), as applicable. The Class X Certificates
shall evidence ownership of the Interest Rate Cap Account for federal income
tax
purposes and the Holder 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
the
Class X Certificateholders as to investment of funds on deposit in the
Interest
Rate Cap Account, such funds shall be invested in the U.S. Bank First American
Prime Obligations Fund, Class A or comparable investment vehicle. Any amounts
on
deposit in the Interest Rate Cap Account in excess of the Interest Rate
Cap
Amount on any Distribution Date shall be held for distribution pursuant
to
Section 5.02(h) or Section 5.02(l), as applicable, on the following Distribution
Date.
114
(h) Funds
or
collateral required to be held pursuant to the Credit Support Annex shall
be
deposited into the Collateral Account. Funds posted by the Cap Counterparty
(or
its credit support provider, if applicable) and/or the Swap Counterparty
(or its
credit support provider, if applicable) in the Collateral Account shall
be
invested in Eligible Investments at the written direction of the Swap
Counterparty. Any interest earnings on such amounts shall be remitted to
the Cap
Counterparty and/or the Swap Counterparty, as applicable, pursuant to the
terms
of the Credit Support Annex. For federal income tax purposes, the Swap
Counterparty shall be considered owner of funds deposited in the Collateral
Account. The Trustee shall not be liable for any losses incurred on such
investments. In the absence of written instructions from the Cap Counterparty
(or its credit support provider) and/or the Swap Counterparty (or its credit
support provider) as to investment of funds on deposit in the Collateral
Account, such funds shall be invested in the U.S. Bank First American Prime
Obligations Fund, Class A or comparable investment vehicle. On the first
Distribution Date immediately following any Swap Payment Date as to which
a
shortfall exists with respect to a Net Swap Payment or a Swap Termination
Payment owed by the Swap Counterparty as a result of its failure to make
payments pursuant to the Swap Agreement, amounts necessary to cover such
shortfall shall be removed from the Collateral Account, remitted to the
Swap
Account and distributed as all or a portion of such Net Swap Payment or
Swap
Termination Payment pursuant to Section 5.02(g), (j) or (k), as applicable.
On
any Distribution Date as to which a shortfall exists with respect to Interest
Rate Cap Amounts owed by the Cap Counterparty as a result of its failure
to make
payments pursuant to the Interest Rate Cap Agreement, amounts necessary
to cover
such shortfall shall be removed from the Collateral Account, remitted to
the
Interest Rate Cap Account and distributed as all or a portion of such Interest
Rate Cap Amount pursuant to Section 5.02(h) or Section 5.02(l), as applicable.
Any amounts on deposit in the Collateral Account required to be returned
to the
Cap Counterparty (or its credit support provider) and/or the Swap Counterparty
(or its credit support provider), as applicable, as a result of (i) the
termination of the Swap Agreement or the Interest Rate Cap Agreement, as
applicable, (ii) the procurement of a guarantor, (iii) the reinstatement
of
required ratings or (iv) otherwise pursuant to the Swap Agreement, shall
be
released directly to the Swap Counterparty and/or the Cap Counterparty,
as
applicable, pursuant to the terms of the Credit Support Annex.
(i) Upon
termination of the Trust Fund, any amounts remaining in the Swap Account
shall
be distributed pursuant to the priorities set forth in Sections 5.02(g),
(j) or
(k), as applicable.
(j) Upon
termination of the Trust Fund, any amounts remaining in the Interest Rate
Cap
Account shall be distributed pursuant to the priorities set forth in Sections
5.02(h) or 5.02(l), as applicable.
(k) Upon
termination of the Trust Fund, any amounts remaining in the Collateral
Account
shall be distributed as required pursuant to the terms of the Credit Support
Annex.
(l) It
is the
intention of the parties hereto that, for federal and state income and
state and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the holder of the Class X Certificates unless and
until
the date when either (a) there is more than one Class X Certificateholder
or (b)
any Class of Certificates in addition to the Class X Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust
for
federal income tax purposes. Neither the Securities Administrator nor the
Trustee shall be responsible for any entity level tax reporting for the
Supplemental Interest Trust.
115
(m) 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
or the Interest Rate Cap Agreement shall be deemed to be an obligation
of the
Supplemental Interest Trust.
(n) In
the
event that either the Swap Counterparty or the Cap Counterparty fails to
perform
any of its obligations under the Swap Agreement or the Interest Rate Cap
Agreement (including, without limitation, its obligations to make any payment
or
transfer collateral), or breaches any of its representations and warranties
under the Swap Agreement or the Interest Rate Cap Agreement, as applicable,
or
in the event that an Event of Default, Termination Event, or Additional
Termination Event occurs (as such terms are defined in the Swap Agreement
or the
Interest Rate Cap Agreement, as applicable), the Trustee, on behalf of
the
Supplemental Interest Trust, shall (upon a Responsible Officer of the Trustee
receiving written notice or having actual knowledge of the occurrence thereof),
no later than the next Business Day following such failure, breach or
occurrence, notify the Swap Counterparty or the Cap Counterparty and give
any
notice of such failure and make any demand for payment pursuant to the
Swap
Agreement or the Interest Rate Cap Agreement, as applicable. In the event
that
the Swap Counterparty’s obligations under the Swap Agreement or the Cap
Counterparty’s obligations under the Interest Rate Cap Agreement are at any time
guaranteed by a third party, then to the extent that the Swap Counterparty
or
Cap Counterparty fails to make any payment or delivery required under terms
of
the Swap Agreement or the Interest Rate Cap Agreement, as applicable, the
Trustee, on behalf of the Supplemental Interest Trust, shall (upon a Responsible
Officer of the Trustee receiving written notice or having actual knowledge
of
the occurrence thereof), no later than the next Business Day following
such
failure, demand that such guarantor make any and all payments then required
to
be made by the applicable guarantor.
Section
5.08. 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 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), (c), (e), (j) and (k) and any Swap Termination Payment
required pursuant to Sections 5.02(b), (c), (e), (j) and (k), into the
Swap
Account, (B) to deposit any amounts from the Basis Risk Reserve Fund required
pursuant to Sections 5.02(f)(iv)(C) and 5.02(f)(vi) into the Swap Account,
(C)
to pay any Net Swap Payment required pursuant to Sections 5.02(g)(i), 5.02(j)
or
5.02(k), as applicable, or Swap Termination Payment required pursuant to
Sections 5.02(g)(ii), 5.02(g)(x), 5.02(j) or 5.02(k), as applicable, to the
Swap Counterparty and (D) to establish and maintain the Swap Account, to
make
such deposits thereto, investments therein and distributions therefrom
as are
required pursuant to Section 5.07. 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.
116
Section
5.09. Termination
Receipts.
(a) 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(g)(x), Section 5.02(j) or
5.02(k), as applicable (“Termination Receipts”) will be deposited in a
segregated non-interest bearing account which shall be an Eligible Account
established by the Trustee (the “Swap Termination Receipts Account”) and (ii)
any amounts received from a replacement Swap Counterparty (“Swap Replacement
Receipts”) will be deposited in a segregated non-interest bearing account which
shall be an Eligible Account established by the Trustee (the “Swap Replacement
Receipts Account”). The Trustee shall invest, or cause to be invested, funds
held in the Swap Termination Receipts Account and the Swap Replacement
Receipts
Account in time deposits of the 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 Swap Payment Date, a Distribution Date or such other
date
as directed by the Certificateholders. All such Eligible Investments will
be
made in the name of the 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 Swap Termination Receipts Account
or the
Swap Replacement Receipts Account, as applicable, and all losses, if any,
shall
be borne by the related account.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Swap Agreement(s)
or
procure a replacement guarantor, if applicable, and the Trustee shall upon
receipt of written direction of, and with the assistance and cooperation
of the
Depositor, use amounts on deposit in the Swap Termination Receipts Account,
if
necessary, to enter into replacement Swap Agreement(s) or to execute any
other
agreements with respect to such replacement guarantor, if applicable, which
shall be executed and delivered by the Trustee on behalf of the Supplemental
Interest Trust upon receipt of written confirmation from each Rating Agency
(if
required pursuant to the terms of the Swap Agreement) that such replacement
Swap
Agreement(s) will not result in the reduction or withdrawal of the rating
of any
outstanding Class of Certificates with respect to which it is a Rating
Agency.
Amounts
on deposit in the Swap Replacement Receipts Account shall be held for the
benefit of the related Swap Counterparty and paid to such Swap Counterparty
if
the Supplemental Interest Trust is required to make a payment to such Swap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so applied shall, following the termination or expiration of such
replacement swap agreement, be paid to the Class X Certificates.
(b) In
the
event of an “Early
Termination Event”
as
defined under the Interest Rate Cap Agreement, (i) any Cap Termination
Payment
made by the Cap Counterparty to the Interest Rate Cap Account and paid
pursuant
to Section 5.02(h)(vii) or Section 5.02(l) (“Cap
Termination Receipts”)
shall
be deposited in a segregated non-interest bearing account which shall be
an
Eligible Account established by the Trustee (the “Cap
Termination Receipts Account”)
and
(ii) any amounts received from a replacement Cap Counterparty (“Cap
Replacement Receipts”)
will be
deposited in a segregated non-interest bearing account which shall be an
Eligible Account established by the Trustee (the “Cap
Replacement Receipts Account”).
The
Trustee shall invest, or cause to be invested, funds held in the Cap Termination
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 Interest Rate Cap Payment Date, a Distribution Date
or
such other date as directed by the Certificateholders. All such Eligible
Investments shall be made in the name of the 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 Cap Termination
Receipts Account and all losses, if any, shall be borne by such account.
117
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Interest Rate
Cap
Agreement(s) and the Trustee shall promptly, upon receipt of written direction
and with the assistance and cooperation of the Depositor, use amounts on
deposit
in the Cap Termination Receipts Account, if necessary, to enter into replacement
Interest Rate Cap Agreement(s) which shall be executed and delivered by
the
Trustee on behalf of the Supplemental Interest Trust upon receipt of written
confirmation from each Rating Agency that such replacement Interest Rate
Cap
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.
118
ARTICLE
VI
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section
6.01. Duties
of Trustee and Securities Administrator.
(a) The
Trustee and the Securities Administrator, except during the continuance
of an
Event of Default of which a Responsible Officer of the Trustee and the
Securities Administrator 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 or the Securities Administrator provided
for in
this Agreement shall not be construed as a duty of the Trustee or the Securities
Administrator. If an Event of Default has occurred and has not otherwise
been
cured or waived, the Trustee and the Securities Administrator (upon receipt
of
actual knowledge thereof by a Responsible Officer of the Trustee or the
Securities Administrator) 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, unless, with respect to the Securities
Administrator, the Securities Administrator is acting as Master Servicer,
in
which case it shall use the same degree of care and skill as the Master
Servicer
hereunder.
(b) Each
of
the Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee or the Securities Administrator, as
applicable, which are specifically required to be furnished pursuant to
any
provision of this Agreement, shall examine them to determine whether they
are on
their face in the form required by this Agreement; provided,
however,
that
neither the Trustee nor the Securities Administrator shall be responsible
for
the accuracy or content of any such resolution, certificate, statement,
opinion,
report, document, order or other instrument furnished by the Master Servicer,
the Servicer, the Swap Counterparty, the Cap Counterparty or the Credit
Risk
Manager to the Trustee or the Securities Administrator pursuant to this
Agreement, and shall not be required to recalculate or verify any numerical
information furnished to the Trustee or the Securities Administrator pursuant
to
this Agreement. Subject to the immediately preceding sentence, if any such
resolution, certificate, statement, opinion, report, document, order or
other
instrument is found not to conform on its face to the form required by
this
Agreement in a material manner the Trustee or Securities Administrator,
as
applicable, shall notify the Person providing such resolutions, certificates,
statements, opinions, reports or other documents of the non-conformity,
and if
the instrument is not corrected to the Trustee’s or Securities Administrator’s,
as applicable, satisfaction, the Trustee or Securities Administrator, as
applicable, will provide notice thereof to the Certificateholders and any
NIMS
Insurer and will, at the expense of the Trust Fund, which expense shall
be
reasonable given the scope and nature of the required action, take such
further
action as directed by the Certificateholders and any NIMS Insurer.
(c) Neither
the Trustee nor the Securities Administrator shall have any liability arising
out of or in connection with this Agreement, except for its negligence
or
willful misconduct. No provision of this Agreement shall be construed to
relieve
the Trustee or the Securities Administrator from liability for its own
negligent
action, its own negligent failure to act or its own willful misconduct;
provided,
however,
that:
119
(i) Neither
the Trustee nor the Securities Administrator shall be liable with respect
to any
action taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Holders 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 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 Corporate Trust Office, and such
notice references the Holders of the Certificates and this
Agreement;
(iii) For
all
purposes under this Agreement, the Securities Administrator shall not be
deemed
to have notice of any Event of Default (other than resulting from a failure
by
the Master Servicer to furnish information to the Securities Administrator
when
required to do so) unless a Responsible Officer of the Securities Administrator
has actual knowledge thereof or unless written notice of any event which
is in
fact such a default is received by the Securities Administrator at the
address
provided in Section 11.07, and such notice references the Holders of the
Certificates and this Agreement;
(iv) No
provision of this Agreement shall require the Trustee or the Securities
Administrator to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk
or liability is not reasonably assured to it; and none of the provisions
contained in this Agreement shall in any event require the Trustee or the
Securities Administrator to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement;
(v) Neither
the Trustee nor the Securities Administrator shall be responsible for any
act or
omission of the Master Servicer, the Servicer, the Credit Risk Manager,
the
Depositor, the Seller, the Custodian, the Swap Counterparty or the Cap
Counterparty and neither the Securities Administrator nor the Trustee shall
be
responsible for any act or omission of the other.
(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
Corporate Trust Office of the Trustee and makes reference to this series
of
Certificate or this Agreement, (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.
120
(e) Neither
the Trustee nor the Securities Administrator shall 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 the
Securities Administrator or exercising any trust or power conferred upon
the
Trustee or the Securities Administrator, as applicable, under this
Agreement.
(f) Neither
the Trustee nor the Securities Administrator shall 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 hereunder if there is reasonable
ground for believing that the timely payment of its fees and expenses or
the
repayment of such funds or adequate indemnity against such risk or liability
is
not reasonably assured to it, and none of the provisions contained in this
Agreement shall in any event require the Trustee or the Securities
Administrator, as applicable, to perform, or be responsible for the manner
of
performance of, any of the obligations of the Master Servicer or the Servicer
under this Agreement or the Servicing Agreement except during such time,
if any,
as the Securities Administrator 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.
(g) The
Trustee shall not be held liable by reason of any insufficiency in the
Collection Account or any other account established under this Agreement
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) The
Trustee shall not and, except as otherwise provided herein, the Securities
Administrator shall not have any duty (A) to see to any recording, filing,
or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to see to the maintenance of any such recording or filing or depositing
or to
any rerecording, refiling or redepositing of any thereof, (B) to see to
any
insurance or claim under any Insurance Policy, and (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 or the Supplemental Interest Trust other than from
funds
available in the Collection Account, the Securities Administration Account
or
the Certificate Account, as applicable. Except as otherwise provided herein,
neither the Trustee nor the Securities Administrator shall have any duty to
confirm or verify the contents of any reports or certificates of the Master
Servicer, the Servicer, the Swap Counterparty, the Cap Counterparty or
the
Credit Risk Manager delivered to the Trustee or the Securities Administrator
pursuant to this Agreement believed by the Trustee or the Securities
Administrator, as applicable, to be genuine and to have been signed or
presented
by the proper party or parties.
(i) Neither
the Securities Administrator nor the Trustee shall be liable in its individual
capacity for an error of judgment made in good faith by a Responsible Officer
or
other officers of the Trustee or the Securities Administrator, as applicable,
unless it shall be proved that the Trustee or the Securities Administrator,
as
applicable, was negligent in ascertaining the pertinent facts.
121
(j) Notwithstanding
anything in this Agreement to the contrary, none of the Securities
Administrator, any Paying Agent or the Trustee shall be liable for special,
indirect or consequential losses or damages of any kind whatsoever (including,
but not limited to, lost profits), even if the Securities Administrator,
the
Paying Agent or the Trustee, as applicable, has been advised of the likelihood
of such loss or damage and regardless of the form of action, provided,
however,
that
this Subsection 6.01(j) shall not apply in connection with any failure
by the
Securities Administrator to comply with the provisions of Subsections 6.01(l)
hereof and Subsections 9.25(a) and (b) hereof.
(k) Neither
the Securities Administrator nor the Trustee shall be responsible for the
acts
or omissions of the other, it being understood that this Agreement shall
not be
construed to render them agents of one another, or of the Master Servicer
or the
Servicer.
(l) For
so
long as the Depositor is subject to Exchange Act reporting requirements
for the
Structured Asset Securities Corporation Mortgage Loan Trust 2007-WF2
transaction, the Securities Administrator shall give prior written notice
to the
Sponsor, the Master Servicer, the NIMS Insurer 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 Securities Administrator
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.
(m) The
Paying Agent and Certificate Registrar shall have the same rights, protections,
immunities and indemnities as are afforded to the Trustee pursuant to this
Article VI.
Section
6.02. Certain
Matters Affecting the Trustee and the Securities Administrator.
Except
as
otherwise provided in Section 6.01:
(a) Each
of
the Trustee and the Securities Administrator may request, and may rely
and shall
be protected in acting or refraining from acting upon any resolution, Officer’s
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or
other paper or document believed by it to be genuine and to have been signed
or
presented by the proper party or parties;
(b) Each
of
the Trustee and the Securities Administrator may consult with counsel and
any
advice of its counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or
omitted by it hereunder in good faith and in accordance with such advice
or
Opinion of Counsel;
(c) Neither
the Trustee nor the Securities Administrator shall 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;
(d) Unless
an
Event of Default shall have occurred and be continuing, neither the Trustee
nor
the Securities Administrator shall be bound to make any investigation into
the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper
or document (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;
provided,
however,
that, if
the payment within a reasonable time to the Trustee or the Securities
Administrator, as applicable, of the costs, expenses or liabilities likely
to be
incurred by it in the making of such investigation is, in the opinion of
the
Trustee or the Securities Administrator, as applicable, not reasonably
assured
to the Trustee or the Securities Administrator by the security afforded
to it by
the terms of this Agreement, the Trustee or the Securities Administrator,
as
applicable, 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;
122
(e) Each
of
the Trustee and the Securities Administrator may execute any of the trusts
or
powers hereunder or perform any duties hereunder either directly or by
or
through agents, custodians or attorneys, which agents, custodians or attorneys
shall have any and all of the rights, powers, duties and obligations of
the
Trustee and the Securities Administrator conferred on them by such appointment,
provided that each of the Trustee and the Securities Administrator shall
continue to be responsible for its duties and obligations hereunder to
the
extent provided herein, and provided further that neither the Trustee nor
the
Securities Administrator shall be responsible for any misconduct or negligence
on the part of any such agent or attorney appointed with due care by the
Trustee
or the Securities Administrator, as applicable;
(f) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement 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
or the
Securities Administrator, as applicable, reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein
or
thereby;
(g) The
right
of the Trustee and the Securities Administrator to perform any discretionary
act
enumerated in this Agreement shall not be construed as a duty, and neither
the
Trustee nor the Securities Administrator shall be answerable for other
than its
negligence or willful misconduct in the performance of such act;
and
(h) Neither
the Trustee nor the Securities Administrator shall be required to give
any bond
or surety in respect of the execution of the Trust Fund or Supplemental
Interest
Trust created hereby or the powers granted hereunder.
Section
6.03. Trustee
and Securities Administrator Not Liable for Certificates.
The
Trustee and the Securities Administrator make no representations as to
the
validity or sufficiency of this Agreement, the Swap Agreement, the Interest
Rate
Cap Agreement, the Certificates (other than the certificate of authentication
on
the Certificates) or the Lower Tier REMIC 1 Uncertificated Regular Interests,
or
of any Mortgage Loan, or related document save that the Trustee and the
Securities Administrator represent that, assuming due execution and delivery
by
the other parties hereto, this Agreement has been duly authorized, executed
and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except 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 and the Securities Administrator
shall not be accountable for the use or application by the Depositor of
funds
paid to the Depositor in consideration of the assignment of the Mortgage
Loans
to the Trust Fund by the Depositor or for the use or application of any
funds
deposited into the Collection Account, the Certificate Account, the Securities
Administration Account, any Escrow Account or any other fund or account
maintained with respect to the Certificates. The Trustee and the Securities
Administrator shall not be responsible for the legality or validity of
this
Agreement, the Swap Agreement, the Interest Rate Cap Agreement, the Mortgage
Loan Sale Agreement or the validity, priority, perfection or sufficiency
of the
security for the Certificates or the Lower Tier REMIC 1 Uncertificated
Regular
Interests issued or intended to be issued hereunder. The Trustee shall
not, and
except as otherwise provided herein, the Securities Administrator shall
have no
responsibility for filing any financing or continuation statement in any
public
office at any time or to otherwise perfect or maintain the perfection of
any
security interest or lien granted to it hereunder or to record this
Agreement.
123
Section
6.04. Trustee
and the Securities Administrator May Own Certificates.
The
Trustee and the Securities Administrator and any Affiliate or agent of
either of
them in its individual or any other capacity may become the owner or pledgee
of
Certificates and may transact banking and trust business with the other
parties
hereto and their Affiliates with the same rights it would have if it were
not
Trustee, Securities Administrator or such agent.
Section
6.05. Eligibility
Requirements for Trustee and Securities Administrator.
The
Trustee and the Securities Administrator hereunder shall at all times 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 the Servicer
(except in the case of the Securities Administrator). 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 addition, the Securities Administrator (i) may
not be
an originator of Mortgage Loans, the Master Servicer, a Servicer, the Depositor
or an affiliate of the Depositor unless the Securities Administrator is
in an
institutional trust department of the Securities Administrator, (ii) must
be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization and (iii) must be rated at least “A/F1” by Fitch, if Fitch is a
Rating Agency that has rated the Securities Administrator, or the equivalent
rating by DBRS, Xxxxx’x or S&P. In case at any time the Trustee or the
Securities Administrator shall cease to be eligible in accordance with
provisions of this Section, the Trustee or the Securities Administrator,
as
applicable, shall resign immediately in the manner and with the effect
specified
in Section 6.06.
124
Section
6.06. Resignation
and Removal of Trustee and the Securities Administrator.
(a) Each
of
the Trustee and the Securities Administrator may at any time resign and
be
discharged from the trust hereby created by giving written notice thereof
to the
Trustee or the Securities Administrator, as applicable, the Depositor,
the Swap
Counterparty, the Cap Counterparty, any NIMS Insurer and the Master Servicer.
Upon receiving such notice of resignation, the Depositor will promptly
appoint a
successor trustee or a successor securities administrator, as applicable,
acceptable to any NIMS Insurer by written instrument, one copy of which
instrument shall be delivered to the resigning Trustee and the resigning
Securities Administrator, as applicable, one copy to the successor trustee
or
successor securities administrator, as applicable, and one copy to each
of the
Master Servicer and any NIMS Insurer. If no successor trustee or successor
securities administrator shall have been so appointed and shall have accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee or resigning Securities Administrator, as applicable,
may
petition any court of competent jurisdiction for the appointment of a successor
trustee or successor securities administrator, as applicable.
(b) If
at any
time (i) the Trustee or the Securities Administrator shall cease to be
eligible
in accordance with the provisions of Section 6.05 and shall fail to resign
after
written request therefor by the Depositor or any NIMS Insurer, (ii) the
Trustee
or the Securities Administrator shall become incapable of acting, or shall
be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or the Securities
Administrator of its property shall be appointed, or any public officer
shall
take charge or control of the Trustee or the Securities Administrator or
of
either of their property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii) the Securities Administrator shall fail
to
observe or perform in any material respect any of the covenants or agreements
of
the Securities Administrator contained in this Agreement, including (A)
any
failure to remit payment to the Trustee on the Deposit Date which failure
continues unremedied for a period of one Business Day (unless such failure
to
remit payment is directly caused by a failure by the Master Servicer to
remit
payments to the Securities Administrator and the Trustee has not terminated
the
Master Servicer as a result of such failure to remit, in which case the
Securities Administrator shall remit payment as promptly as possible, but
in no
case later than one Business Day after recovering payment from the Master
Servicer) and (B) any failure to provide the information, reports, assessments
or attestations required pursuant to Subsection 9.25(a) or 9.25(b) hereof,
(iv)
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, (v)
the
continued use of the Trustee or Securities Administrator would result in
a
downgrading of the rating by any Rating Agency of any Class of Certificates
with
a rating, (vi) the Paying Agent shall fail to provide the information required
pursuant to Subsection 3.08(b) hereof or (vii) the Depositor desires to
replace
the Securities Administrator with a successor Securities Administrator,
then the
Depositor, the Master Servicer, the Trustee (with regard to clause (iii)
only)
or any NIMS Insurer shall remove the Trustee, the Paying Agent or the Securities
Administrator, as applicable, and the Depositor shall appoint a successor
trustee or successor securities administrator, as applicable, acceptable
to any
NIMS Insurer and the Master Servicer by written instrument, one copy of
which
instrument shall be delivered to the Trustee or Securities Administrator
so
removed, one copy each to the successor trustee or successor securities
administrator, as applicable, and one copy to each of the Master Servicer
and
any NIMS Insurer.
125
(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 or Securities Administrator, as applicable, to perform its
obligations hereunder) may at any time upon 30 days’ written notice to the
Trustee or the Securities Administrator, as applicable, and to the Depositor
remove the Trustee or the Securities Administrator, as applicable, 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 Trustee, one copy each to the
Master
Servicer and any NIMS Insurer; the Depositor shall thereupon appoint a
successor
trustee or successor securities administrator, as applicable, in accordance
with
this Section mutually acceptable to the Depositor, the Master Servicer
and any
NIMS Insurer.
(d) Any
resignation or removal of the Trustee or the Securities Administrator,
as
applicable, and appointment of a successor trustee or successor securities
administrator pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee or the
successor securities administrator, as applicable, as provided in Section
6.07.
Section
6.07. Successor
Trustee and Successor Securities Administrator.
(a) Any
successor trustee or successor securities administrator appointed as provided
in
Section 6.06 shall execute, acknowledge and deliver to the Depositor, the
Master
Servicer, any NIMS Insurer, the Swap Counterparty and to its predecessor
trustee
or predecessor securities administrator, as applicable, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of
the
predecessor trustee or predecessor securities administrator, as applicable,
shall become effective and such successor trustee or successor securities
administrator, as applicable, without any further act, deed or conveyance,
shall
become fully vested with all the rights, powers, duties and obligations
of its
predecessor hereunder, with like effect as if originally named as trustee
or
securities administrator, as applicable, herein. A predecessor trustee
(or its
custodian) shall deliver to the Trustee or any successor trustee (or assign
to
the Trustee its interest under the 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 or predecessor securities administrator,
as
applicable, shall execute and deliver such other instruments and do such
other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee or successor securities administrator,
as
applicable, all such rights, powers, duties and obligations.
126
(b) No
successor trustee or successor securities administrator shall accept appointment
as provided in this Section 6.07 unless at the time of such appointment
such
successor trustee or successor securities administrator shall be eligible
under
the provisions of Section 6.05.
(c) Upon
acceptance of appointment by a successor trustee or successor securities
administrator, as applicable, as provided in this Section 6.07, the predecessor
trustee or predecessor securities administrator, as applicable, shall mail
notice of the succession of such trustee or securities administrator, as
applicable, 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 or predecessor securities
administrator, as applicable.
(d) Upon
the
resignation or removal of the Trustee pursuant to Section 6.06, the Trustee
shall deliver the amounts held in its possession for the benefit of the
Certificateholders to the successor trustee upon the appointment of the
successor trustee.
Section
6.08. Merger
or Consolidation of Trustee or the Securities Administrator.
Any
Person into which the Trustee or Securities Administrator may be merged
or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee or Securities Administrator
shall be a party, or any Persons succeeding to the corporate trust business
of
the Trustee or Securities Administrator, shall be the successor to the
Trustee
or Securities Administrator hereunder, without the execution or filing
of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided
that, in
the case of the Trustee, such Person shall be eligible under the provisions
of
Section 6.05. Unless and until a Form 15 suspension notice shall have been
filed, as a condition to a succession to the Trustee or the Securities
Administrator under this Agreement by any Person (i) into which the Trustee
or
the Securities Administrator may be merged or consolidated, or (ii) which
may be
appointed as a successor to the Trustee or the Securities Administrator,
the
Trustee or the Securities Administrator 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
Securities Administrator 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 obligation of the Securities Administrator to make
Advances
pursuant to Sections 5.04 and 6.14 hereof shall not be affected or assigned
by
the appointment of a co-trustee. Notwithstanding the foregoing, if such
co-custodian or co-trustee is determined to be a Servicing Function Participant,
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.
127
(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 monies shall be exercised solely by
the
Trustee;
(ii) all
other
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee, co-trustee, or custodian jointly, except to the
extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed the Trustee shall be incompetent or unqualified to perform
such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust Fund or any portion thereof
in any
such jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(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.
128
(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 requested
by
the Trustee to be so appointed (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.
(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.
129
Section
6.11. Indemnification
of Trustee and Securities Administrator.
Each
of
the Trustee and the Securities Administrator and their 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
its
part (it being understood that the negligence or willful misconduct of
the
Custodian shall not constitute negligence or willful misconduct on the
part of
the Trustee or the Securities Administrator or any of their respective
directors, officers, employees or agents for such purpose), 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 Swap Agreement, the Interest Rate Cap Agreement, the Mortgage
Loan
Sale Agreement, the Transfer Agreement, the Servicing Agreement or the
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:
(i) with
respect to any such claim, the Trustee or the Securities Administrator,
as
applicable, shall have given the Depositor, the Master Servicer, any NIMS
Insurer and the Holders written notice thereof promptly after a Responsible
Officer of the Trustee or the Securities Administrator, as applicable,
shall
have knowledge thereof provided
that the
failure to provide such prompt written notice shall not affect the Trustee’s or
Securities Administrator’s right to indemnification hereunder;
(ii) while
maintaining control over its own defense, the Trustee or the Securities
Administrator, as applicable, shall cooperate and consult fully with the
Depositor, the Master Servicer and any NIMS Insurer 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 or the Securities
Administrator, as applicable, entered into without the prior consent of
the
Depositor, the Master Servicer and any NIMS Insurer, which consent shall
not be
unreasonably withheld.
130
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 fifth 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 or the Securities Administrator,
as applicable, 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 Securities Administrator, Trustee and Custodian.
The
Trustee shall be entitled, annually, to the Trustee Fee, which shall
be paid by
the Securities Administrator on the first Distribution Date of each Anniversary
Year. The Custodian shall be entitled to the Custodial Compensation which
shall
be paid by the Seller as invoiced by the Custodian. The Securities Administrator
shall be entitled to any investment income and earnings on the Securities
Administration Account (other than any amounts required to be deducted
in
respect of the Trustee Fee as provided in Section 4.05(f)). The Trustee
and the
Securities Administrator shall be entitled to reimbursement of all reasonable
expenses, disbursements and advances incurred or made by the Securities
Administrator or Trustee, as applicable, 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 such party
is
entitled as provided therein), except for expenses, disbursements and
advances
that either (i) do not constitute “unanticipated expenses” within the meaning of
Treasury Regulation Section 1.860G-1(b)(3)(ii) or (ii) arise from its
negligence, bad faith or willful misconduct. If the Trustee Fee is not
fully
paid from (i) the Securities Administrator’s own funds or (ii) investment income
and earnings on amounts on deposit in the Securities Administration Account
or
the Certificate Account, as applicable, then prior to any distribution
to
Certificateholders pursuant to Section 5.02 hereof, the Trust Fund shall
immediately reimburse the Trustee, upon demand for any such shortfall
from
amounts on deposit in the Certificate Account. The Custodian shall receive
compensation and reimbursement or payment of its expenses under the 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 indemnity 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.
Except
as
otherwise expressly provided in this Agreement, the Securities Administrator
and
the Trustee, as applicable, may demand payment or delivery of, and shall
receive
and collect, all money and other property payable to or receivable by it
pursuant to this Agreement. The Securities Administrator and 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 Securities
Administrator shall not have timely received amounts to be remitted with
respect
to the Mortgage Loans from the Master Servicer, the Securities Administrator
shall request the Master Servicer to make such distribution as promptly
as
practicable or legally permitted. If the Trustee shall not have timely
received
amounts to be remitted with respect to the Mortgage Loans from the Securities
Administrator, the Trustee shall request the Securities Administrator to
make
such distribution as promptly as practicable or legally permitted. If the
Securities Administrator or the Trustee shall subsequently receive any
such
amounts, each may withdraw such request, respectively.
131
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 Securities Administrator
the
Mortgage Loan data sufficient to prepare the reports described in Section
4.03(a) (other than with respect to the information referred to in clauses
(xix), (xx) and (xxi) of such Section 4.03(a)) which continues unremedied
for a
period of two (2) Business Days after the date upon which written notice
of such
failure shall have been given to such Master Servicer by the Trustee or
the
Securities Administrator or to such Master Servicer, the Securities
Administrator and the Trustee by the Holders of not less than 25% of the
Class
Principal Amount of each Class of Certificates affected thereby; or
(ii) Any
failure by the Master Servicer to duly perform, within the required time
period
and without notice, its obligations to provide any certifications required
pursuant to Sections 9.25 and 9.26; or
(iii) Except
with respect to those items listed in clause (ii) above, any failure by
the
Master Servicer to duly perform, within the required time period, without
notice
or grace period, its obligations to provide any information, data or materials
required to be provided hereunder pursuant to Sections 9.23 and 9.29(b),
including any items required to be included in any Exchange Act report;
or
(iv) 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 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 the Securities Administrator, or to the Master Servicer,
the
Securities Administrator and the Trustee by the Holders of more than 50%
of the
Aggregate Voting Interests of the Certificates or by any NIMS Insurer;
or
(v) 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
132
(vi) 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
(vii) 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
(viii) 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
9.27
hereof; or
(ix) 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 the Securities Administrator,
or
to the Master Servicer, the Securities Administrator and the Trustee by
the
Holders of more than 50% of the Aggregate Voting Interests of the Certificates
or by any NIMS Insurer; or
(x) 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
(xi) The
Master Servicer has notice or actual knowledge that the 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 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 acquires such actual knowledge; or
(xii) After
receipt of notice from the Trustee, Securities Administrator or any NIMS
Insurer, any failure of the Master Servicer to remit to the Securities
Administrator any payment required to be made to the Securities Administrator
for the benefit of Certificateholders under the terms of this Agreement,
including any Advance, on any Master Servicer Remittance Date which such
failure
continues unremedied for a period of one Business Day after the date upon
which
notice of such failure shall have been given to the Master Servicer by
the
Trustee.
133
If
an
Event of Default described in clauses (i) through (xii) of this Section
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 (with a copy to the Securities Administrator) may, and shall,
if so
directed by the Certificateholders evidencing more than 50% of the Class
Principal Amount of each Class of Certificates, terminate all of the rights
and
obligations of the Master Servicer hereunder and in and to the Mortgage
Loans
and the proceeds thereof. If an Event of Default described in clause (xii)
of
this Section 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 (xii) of this Section 6.14, the Trustee,
by
notice in writing to the Master Servicer (with a copy to the Securities
Administrator), shall promptly terminate all of 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 Securities Administrator
and
upon receipt of written notice by the Securities Administrator from the
Trustee
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 Servicing obligations to the Securities Administrator; provided,
further, the
obligation to make Advances by the Securities Administrator shall be effective
upon the Trustee providing notice to the Securities Administrator of the
termination of the Master Servicer pursuant to this Section 6.14. The Securities
Administrator 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 and the Securities Administrator
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 Securities Administrator or its designee all
documents and records in electronic or other form reasonably requested
by it to
enable the Securities Administrator or its designee to assume the defaulting
Master Servicer’s functions hereunder and the transfer to the Securities
Administrator 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 (or the Trust Fund, if the Master Servicer is unable to fulfill
its
obligations hereunder) as a result of an Event of Default shall bear all
costs
of a master servicing transfer, including but not limited to those of the
Trustee or the Securities Administrator 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.
134
The
Securities Administrator and 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
master servicing from the predecessor Master Servicer, including, without
limitation, any costs or expenses associated with the complete transfer
of all
master servicing data and the completion, correction or manipulation of
such
servicing data as may be required by the Securities Administrator to correct
any
errors or insufficiencies in the master servicing data or otherwise to
enable
the Securities Administrator 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, and the Securities Administrator
and the Trustee, as applicable, 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
for any
such expense incurred by the Trust; and provided,
further,
that
the Securities Administrator shall decide whether and to what extent it
is in
the best interest of the Trust Fund to pursue any remedy against any party
obligated to make such reimbursement.
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 to the extent such reimbursement relates to the period
prior to
such Master Servicer’s termination.
If
any
Event of Default shall occur, the Securities Administrator or Trustee,
upon a
Responsible Officer of such party becoming aware of the occurrence thereof,
shall promptly notify the Securities Administrator, the Trustee, any NIMS
Insurer, the Swap Counterparty, the Cap Counterparty and each Rating Agency
of
the nature and extent of such Event of Default. The Securities Administrator
shall immediately give written notice to the Master Servicer, the Trustee,
the
Swap Counterparty and the Cap Counterparty upon the Master Servicer’s failure to
remit funds to the Securities Administrator on the Master Servicer Remittance
Date.
(b) On
and
after 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
and within a period of time not to exceed 90 days after the Securities
Administrator receives written notice from the Trustee pursuant to Section
6.14(a) or Section 9.28, the Securities Administrator, 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 or the Trustee’s failure to provide information required by this
Agreement shall not be considered a default by the Securities Administrator
or
the Trustee hereunder. In addition, the Securities Administrator 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 Securities Administrator receives written notice from
the
Trustee pursuant to Section 6.14(a) or Section 9.28, as applicable. The
Securities Administrator shall have no liability relating to the representations
and warranties of the Master Servicer set forth in Section 9.14. In the
Securities Administrator’s capacity as such successor, the Securities
Administrator shall have the same limitations on liability herein granted
to the
Master Servicer. As compensation therefor, the Securities Administrator
shall be
entitled to receive all compensation payable to the Master Servicer under
this
Agreement, including the Master Servicing Fee.
135
(c) Notwithstanding
the above, the Securities Administrator may, if it shall be unwilling to
continue to so act, or shall, if it is unable to so act, request the Trustee
to
appoint, 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. Such successor master servicer
shall have no responsibility for any act or omission of the Master Servicer
prior to such successor’s assumption of the Master Servicer’s rights and
obligations hereunder and such successor master servicer shall also have
no
liability relating to the representations and warranties of the Master
Servicer
set forth in Section 9.14. Any entity designated by the Trustee or the
Securities Administrator as a successor master servicer may be an Affiliate
of
the Trustee or the Securities Administrator; provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer, the Trustee or the Securities
Administrator, 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 or the Securities Administrator
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, the Securities Administrator 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, the Securities Administrator
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, the Securities Administrator 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, the Securities
Administrator 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 or the Lower Tier REMIC 1 Uncertificated Regular Interests
or thereafter be received with respect to the Mortgage Loans. Neither the
Trustee, the Securities Administrator 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 in its possession, (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 Securities
Administrator as required by this Agreement or (iv) restrictions imposed
by any
regulatory authority having jurisdiction over the Master Servicer. Neither
the
Securities Administrator 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 Trustee to deliver, or any delay in delivering cash, documents
or
records to it, or (ii) the failure of Trustee to cooperate as required
by this
Agreement.
136
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 and the Certificateholders
(including the institution and prosecution of all judicial, administrative
and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy
provided for by this Agreement shall be exclusive of any other remedy,
and each
and every remedy shall be cumulative and in addition to any other remedy,
and no
delay or omission to exercise any right or remedy shall impair any such
right or
remedy or shall be deemed to be a waiver of any 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.
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 Securities Administrator and
the
Certificateholders at their respective addresses appearing on the Certificate
Register, any NIMS Insurer, the Swap Counterparty and the Cap 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
Securities Administrator, 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.
137
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 acceptable to any NIMS
Insurer, 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 or the Securities Administrator
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 or the Securities Administrator,
as
applicable, shall give notice thereof to the Master Servicer, any NIMS
Insurer,
the Trustee, the Securities Administrator, the Swap Counterparty and the
Cap
Counterparty, as applicable.
Section
6.20. Preparation
of Tax Returns and Other Reports.
(a) The
Securities Administrator shall prepare or cause to be prepared on behalf
of the
Trust Fund, based upon information calculated in accordance with this Agreement
pursuant to instructions given by the Depositor, and the Securities
Administrator shall file federal tax returns, all in accordance with Article
X
hereof. If the Securities Administrator determines that a state tax return
or
other return is required, then, at its sole expense, the Securities
Administrator shall prepare and file such state income tax returns and
such
other returns as may be required by applicable law relating to the Trust
Fund,
and, if required by state law, and shall file any other documents to the
extent
required by applicable state tax law (to the extent such documents are
in the
Securities Administrator’s possession). The Securities Administrator shall
forward copies to the Depositor of all such returns and supplemental tax
information and such other information within the Securities Administrator’s
control as the Depositor may reasonably request in writing. The Securities
Administrator shall furnish to the Trustee, who shall furnish to each
Certificateholder, such forms and such information within the control of
the
Securities Administrator as are required by the Code and the REMIC Provisions
to
be furnished to them (other than any Form 1099s). The Master Servicer will
indemnify the Securities Administrator and the Trustee for any liability
of or
assessment against the Securities Administrator and the Trustee, as applicable,
arising out of or based upon any error in any of such tax or information
returns
arising out of or based upon errors in the information provided by such
Master
Servicer.
138
(b) The
Securities Administrator shall prepare and file with the Internal Revenue
Service (“IRS”), on behalf of the Trust Fund and each of the REMICs specified in
the Preliminary Statement, an application for an employer identification
number
on IRS Form SS-4 or by any other acceptable method. The Securities Administrator
shall also file a Form 8811 as required. The Securities Administrator,
upon
receipt from the IRS of the Notice of Taxpayer Identification Number Assigned,
shall upon request promptly forward a copy of such notice to the Trustee
and the
Depositor. The Trustee shall have no obligation to verify the information
in any
Form 8811 or Form SS-4 filing.
(c) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, the Securities Administrator shall, in accordance
with
industry standards and the rules of the Commission as in effect from time
to
time (the “Rules”), prepare and file with the Commission via the Electronic Data
Gathering and Retrieval System (“XXXXX”), the reports listed in subsections (d)
through (g) of this Section 6.20 in respect of the Trust Fund as and to
the
extent required under the Exchange Act.
(d) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under
the
Exchange Act), the Securities Administrator shall prepare and file on behalf
of
the Trust Fund any Form 10-D required by the Exchange Act, in form and
substance
as required by the Exchange Act. The Securities Administrator shall file
each
Form 10-D with a copy of the related Distribution Date Statement and a
copy of
each report made available by the Credit Risk Manager pursuant to Section
9.34
(provided
each
such report is made available to the Securities Administrator in a format
compatible with XXXXX filing requirements) attached thereto. Any disclosure
in
addition to the Distribution Date Statement that is required to be included
on
Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared
by and at the direction of the Depositor pursuant to the following paragraph
and
the Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure,
except as
set forth in the next paragraph.
(ii) As
set
forth on Exhibit P-1 hereto, within five calendar days after the related
Distribution Date, (A) certain parties to the Structured Asset Securities
Corporation Mortgage Loan Trust 2007-WF2 transaction shall be required
to
provide to the Securities Administrator and the Depositor, to the extent
known
by a responsible officer thereof, in XXXXX-compatible form (which may be
Word or
Excel documents easily convertible to XXXXX format), or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the
form
and substance of any Additional Form 10-D Disclosure, if applicable, and
include
with such Additional Form 10-D Disclosure an Additional Disclosure Notification
in the form attached hereto as Exhibit P-4 and (B) the Depositor will approve,
as to form and substance, or disapprove, as the case may be, the inclusion
of
the Additional Form 10-D Disclosure on Form 10-D. The Sponsor will be
responsible for any reasonable fees and expenses assessed or incurred by
the
Securities Administrator in connection with including any Additional Form
10-D
Disclosure on Form 10-D pursuant to this paragraph.
139
(iii) After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a 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 representative
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 Securities Administrator. If a Form 10-D cannot
be
filed on time or if a previously filed Form 10-D needs to be amended, the
Securities Administrator will follow the procedures set forth in subsection
(g)(ii) of this Section 6.20. Promptly (but no later than one Business
Day)
after the deadline for filing such report with the Commission, the Securities
Administrator will make available on its internet website a final executed
copy
of each Form 10-D prepared and filed by the Securities Administrator. Each
party
to this Agreement acknowledges that the performance by the Securities
Administrator 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 Securities Administrator shall have no liability for
any
loss, expense, damage, claim arising out of or with respect to any failure
to
properly prepare and/or timely file such Form 10-D, where such failure
results
from the Securities Administrator’s inability or failure to obtain or receive,
on a timely basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 10-D, not resulting from
its
own negligence, bad faith or willful misconduct.
(iv) Form
10-D
requires the registrant to indicate (by checking "yes" or "no") that it
“(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject
to such
filing requirements for the past 90 days.” Unless the Depositor has given the
Securities Administrator prior notice as provided below, at the date of
filing
of each report on Form 10-D, the Depositor shall be deemed to represent
to the
Securities Administrator that, as of such date, the Depositor has filed
all such
required reports during the preceding 12 months and that it has been subject
to
such filing requirement for the past 90 days. The Depositor shall notify
the
Securities Administrator in writing, no later than the fifth calendar day
after
the related Distribution Date with respect to the filing of a report on
Form
10-D if the answer to the questions should be “no.” The Securities Administrator
shall be entitled to rely on such representations in preparing, executing
and/or
filing any such report.
(e) Reports
Filed on Form 10-K.
(i) Unless
and until a Form 15 suspension notice shall have been filed, within 90
days
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 2008, the Securities Administrator shall prepare
and
file on behalf of the Trust Fund a Form 10-K, in form and substance as
required
by the Exchange Act. Each such Form 10-K shall include the following items,
in
each case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement, the Servicing
Agreement and the Custodial Agreement, (A) an annual compliance statement
for
the Servicer, each Additional Servicer and the Master Servicer, as described
under Section 9.26 hereof and in the Servicing Agreement, (B)(I) the annual
reports on assessment of compliance with servicing criteria for each Servicer,
the Custodian, each Additional Servicer, the Master Servicer, the Credit
Risk
Manager, any Servicing Function Participant, the Paying Agent and the Securities
Administrator (each, a “Reporting Servicer”), as described under Section 9.25(a)
hereof and in the Servicing Agreement and Custodial Agreement, and (II)
if any
Reporting Servicer’s report on assessment of compliance with servicing criteria
described under Section 9.25(a) hereof or in the Servicing Agreement or
Custodial Agreement identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any Reporting
Servicer’s report on assessment of compliance with servicing criteria described
under Section 9.25(a) hereof or in the Servicing Agreement or the Custodial
Agreement is not included as an exhibit to such Form 10-K, disclosure that
such
report is not included and an explanation why such report is not included,
(C)(I) the registered public accounting firm attestation report for each
Reporting Servicer, as described under Section 9.25(b) hereof and in the
Servicing Agreement and the Custodial Agreement and (II) if any registered
public accounting firm attestation report described under Section 9.25(b)
hereof
or in the Servicing Agreement or Custodial Agreement identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that
such
report is not included and an explanation why such report is not included,
and
(D) a Xxxxxxxx-Xxxxx Certification. Any disclosure or information in addition
to
(A) through (D) above that is required to be included on Form 10-K (“Additional
Form 10-K Disclosure”) shall be determined and prepared by and at the direction
of the Depositor pursuant to the following paragraph and the Securities
Administrator will have no duty or liability for any failure hereunder
to
determine or prepare any Additional Form 10-K Disclosure, except as set
forth in
the next paragraph.
140
(ii) As
set
forth on Exhibit P-2 hereto, no later than March 15 of each year that the
Trust
Fund is subject to the Exchange Act reporting requirements, commencing
in 2008,
(A) certain parties to the Structured Asset Securities Corporation Mortgage
Loan
Trust 2007-WF2 transaction, as identified on Exhibit P-2, shall provide
to the
Depositor and the Securities Administrator, to the extent known by a responsible
officer thereof, in XXXXX-compatible form (which may be Word or Excel documents
easily convertible to XXXXX format), or in such other form as otherwise
agreed
upon by the Securities Administrator and such party, the form and substance
of
any Additional Form 10-K Disclosure, if applicable, and include with such
Additional Form 10-K Disclosure, an Additional Disclosure Notification
in the
form attached hereto as Exhibit P-4 and (B) the Depositor will approve,
as to
form and substance, or disapprove, as the case may be, the inclusion of
the
Additional Form 10-K Disclosure on Form 10-K. The Securities Administrator
has
no duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit P-2 of their duties under this paragraph or
proactively solicit or procure from such parties any Form 10-K Disclosure
Information. The Sponsor will be responsible for any reasonable fees and
expenses assessed or incurred by the Securities Administrator in connection
with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to
this
paragraph.
141
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a 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
fourth
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 Securities Administrator. If a Form 10-K cannot
be filed
on time or if a previously filed Form 10-K needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (g) of
this
Section 6.20. Promptly (but no later than one Business Day) after the deadline
for filing with the Commission, the Securities Administrator will make
available
on its internet website a final executed copy of each Form 10-K prepared
and
filed by the Securities Administrator. The parties to this Agreement acknowledge
that the performance by the Securities Administrator of its duties under
this
Section 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 Securities Administrator shall have no liability for
any loss,
expense, damage, claim arising out of or with respect to any failure to
properly
prepare and/or timely file such Form 10-K, where such failure results from
the
Securities Administrator’s inability or failure to obtain or receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
(iv) Each
Form
10-K shall include the Xxxxxxxx-Xxxxx Certification. The Securities
Administrator, the Paying Agent (if other than the Trustee) and the Trustee
and,
if the Depositor is the Exchange Act Signing Party, the Master Servicer,
shall,
and the Securities Administrator, the Paying Agent, the Trustee and the
Master
Servicer (if applicable) shall cause any Servicing Function Participant
engaged
by it to, provide to the Person who signs the Xxxxxxxx-Xxxxx Certification
(the
“Certifying Person”), by March 15 of each year in which the Trust Fund is
subject to the reporting requirements of the Exchange Act (each, a “Back-Up
Certification”), (x) in the case of the Master Servicer, in the form attached
hereto as Exhibit Q-1, (y) in the case of the Securities Administrator,
the form
attached hereto as Exhibit Q-2, and (z) in the case of the Paying Agent
(other
than the Trustee) or the Trustee, including in its capacity as Paying Agent,
in
the form attached hereto as Exhibit Q-3, upon which the Certifying Person,
the
entity for which the Certifying Person acts as an officer, and such entity’s
officers, directors and Affiliates (collectively with the Certifying Person,
“Certification Parties”) can reasonably rely. The senior officer of the Exchange
Act Signing Party shall serve as the Certifying Person on behalf of the
Trust
Fund. In the event the Master Servicer, the Securities Administrator, the
Trustee, the Paying Agent or any Servicing Function Participant engaged
by such
parties is terminated or resigns pursuant to the terms of this Agreement,
such
party or Servicing Function Participant shall provide a Back-Up Certification
to
the Certifying Person pursuant to this Section 6.20(e)(iv) with respect
to the
period of time it was subject to this Agreement.
142
(v) 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.
(vi) Form
10-K
requires the registrant to indicate (by checking "yes" or "no") that it
“(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject
to such
filing requirements for the past 90 days.” Unless the Depositor has given the
Securities Administrator prior notice as provided below, at the date of
filing
of each report on Form 10-K, the Depositor shall be deemed to represent
to the
Securities Administrator that, as of such date, the Depositor has filed
all such
required reports during the preceding 12 months and that it has been subject
to
such filing requirement for the past 90 days. The Depositor shall notify
the
Securities Administrator in writing, no later than March 15th
with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no.” The Securities Administrator shall be entitled to rely on such
representations in preparing, executing and/or filing any such
report.
(f) Reports
Filed on Form 8-K.
(i) During
any year in which the Trust Fund is subject to Exchange Act reporting,
within
four Business Days after the occurrence of an event requiring disclosure
on Form
8-K (each such event, a “Reportable Event”) or such later date as may be
required by the Commission, and if requested by the Depositor, the Securities
Administrator shall prepare and file on behalf of the Trust Fund any Form
8-K,
as required by the Exchange Act; provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance
of the
Certificates. Any disclosure or information related to a Reportable Event
or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or
prepare
any Form 8-K Disclosure Information or any Form 8-K, except as set forth
in the
next paragraph.
143
(ii) As
set
forth on Exhibit P-3 hereto, for so long as the Trust Fund is subject to
the
Exchange Act reporting requirements, no later than Noon New York City time
on
the second Business Day after the occurrence of a Reportable Event (A)
certain
parties to the Structured Asset Securities Corporation Mortgage Loan Trust
2007-WF2 transaction, as identified on Exhibit P-3, shall be required to
provide
to the Depositor and the Securities Administrator, to the extent known
by a
responsible officer thereof, in XXXXX-compatible form (which may be Word
or
Excel documents easily convertible to XXXXX format), or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the
form
and substance of any Form 8-K Disclosure Information, if applicable, and
include
with such Form 8-K Disclosure Information, an Additional Disclosure Notification
in the form attached hereto as Exhibit P-4 and (B) the Depositor will approve,
as to form and substance, or disapprove, as the case may be, the inclusion
of
the Form 8-K Disclosure Information. The Securities Administrator has no
duty
under this Agreement to monitor or enforce the performance by the parties
listed
on Exhibit P-3 of their duties under this paragraph or proactively solicit
or
procure from such parties any Form 8-K Disclosure Information. The Sponsor
will
be responsible for any reasonable fees and expenses assessed or incurred
by the
Securities Administrator in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically, no later than Noon New York City time on the third Business
Day
after the Reportable Event, a 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 Noon New York City time
on the
fourth Business Day after the Reportable Event, a senior 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 Securities Administrator. If a Form 8-K cannot be
filed
on time or if a previously filed Form 8-K needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (g) of
this
Section 6.20. Promptly (but no later than one Business Day) after the deadline
for filing such Form 8-K with the Commission, the Securities Administrator
will
make available on its internet website a final executed copy of each Form
8-K
prepared and filed by it pursuant to this Section 6.20(f). The parties
to this
Agreement acknowledge that the performance by the Securities Administrator
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 Securities Administrator 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 8-K, where such failure results
from the Securities Administrator’s inability or failure to obtain or receive,
on a timely basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 8-K, not resulting from
its own
negligence, bad faith or willful misconduct.
(g) Suspension
of Reporting Obligations; Amendments; Late Filings.
144
(i) On
or
before January 30th of the first year in which the Securities Administrator
is
able to do so under applicable law, unless otherwise directed by the Depositor,
the Securities Administrator shall prepare and file a Form 15 relating
to the
automatic suspension of reporting in respect of the Trust Fund under the
Exchange Act. The Paying Agent is entitled to assume that a Form 15 will
be
filed for such year unless the Securities Administrator notifies the Paying
Agent that a Form 15 will not be filed.
(ii) In
the
event that the Securities Administrator becomes aware that it will be unable
to
timely file with the Commission all or any required portion of any Form
8-K,
10-D or 10-K required to be filed by this Agreement because required disclosure
information was either not delivered to it or delivered to it after the
delivery
deadlines set forth in this Agreement or for any other reason, the Securities
Administrator will promptly notify the Depositor. In the case of Form 10-D
and
10-K, the parties to this Agreement and each Servicer will cooperate to
prepare
and file a Form 12b-25 and a 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 Securities
Administrator will, upon receipt of all required Form 8-K Disclosure Information
and upon the approval and direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any previously filed
Form
8-K, 10-D or 10-K needs to be amended with respect to an additional disclosure
item, the Securities Administrator will notify the Depositor and any applicable
party affected thereby and such parties will cooperate to prepare any necessary
8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form
8-K,
10-D or 10-K shall be signed by a senior officer or a duly authorized
representative, as applicable, of the Exchange Act Signing Party. The parties
to
this Agreement acknowledge that the performance by the Securities Administrator
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
Securities Administrator shall have no liability for any loss, expense,
damage,
claim arising out of or with respect to any failure to properly prepare
and/or
timely file any such Form 15, Form 12b-25 or any amendments to Forms 8-K,
10-D
or 10-K, where such failure results from the Securities Administrator’s
inability or failure to obtain or receive, on a timely basis, any information
from any other party hereto 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) Any
party
that signs any Exchange Act report that the Securities Administrator is
required
to file shall provide to the Securities Administrator 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
Securities Administrator the original executed signature page for such
report.
In addition, each of the parties agrees to provide to the Securities
Administrator such additional information related to such party as the
Securities Administrator may reasonably request, including evidence of
the
authorization of the person signing any certification or statement, financial
information and reports, and such other information related to such party
or its
performance hereunder.
145
(i) 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 Securities
Administrator, 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 Securities Administrator of
any
such change. Any notice delivered pursuant to this Section 6.20 may be
by fax or
electronic copy, notwithstanding the notice provisions of Section
11.07.
Section
6.21. Reporting
Requirements of the Commission
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 and the Depositor with the provisions of Regulation AB, as such
may be
amended or clarified from time to time. Therefore, each of the parties
agrees
that (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, convention
or consensus among active participants in the asset-backed securities markets,
advice of counsel, or otherwise in respect of the requirements of Regulation
AB
and (c) the parties shall comply with reasonable requests made by the Sponsor,
the Master Servicer, the Depositor or the Securities Administrator for
delivery
of additional or different information, to the extent that such information
is
available or reasonably attainable within such time frame as may be requested,
as the Sponsor, the Master Servicer, the Depositor or the Securities
Administrator may determine in good faith is necessary to comply with the
provisions of Regulation AB.
Section
6.22. No
Merger.
The
Trustee shall not cause or otherwise knowingly permit the assets of the
Trust
Fund to be merged or consolidated with any other entity, except as a result
of a
final judicial determination.
Section
6.23. Indemnification
by the Securities Administrator.
The
Securities Administrator agrees to indemnify the Depositor, the Trustee
and the
Master Servicer, and each of 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 the engagement of any
Subcontractor in violation of Section 6.01(l) or any failure by the Securities
Administrator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Agreement, including
any report under Sections 6.20, 9.25(a) or 9.25(b).
146
ARTICLE
VII
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
Section
7.01. Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation
of All
Mortgage Loans; Purchase of Lower Tier REMIC 1 Uncertificated Regular Interests.
(a) The
respective obligations and responsibilities of the Trustee, the Securities
Administrator 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 Securities Administrator pursuant to Section 4.01,
the
obligation of the Securities Administrator to make a final remittance to
the
Trustee pursuant to Section 4.05 and the obligations of the Master Servicer
to
the Securities Administrator pursuant to Section 9.10 and to the Securities
Administrator and the Trustee pursuant to Sections 9.14 and 9.31) shall
terminate on the earliest of (i) the final payment or other liquidation
of the
last Mortgage Loan remaining in the Trust Fund and the disposition of all
REO
Property, (ii) the sale of the property held by the Trust Fund in accordance
with Section 7.01(b) and (iii) the Latest Possible Maturity Date (each,
a “Trust
Fund 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. Xxxxx,
living on the date hereof. Upon the occurrence of a Trust Fund Termination
Event, each REMIC shall be terminated in a manner that shall qualify as
a
“qualified liquidation” under the REMIC Provisions.
(b) On
any
Distribution Date occurring on or after the Initial Optional Termination
Date,
the Master Servicer or 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 cause the Trust Fund to adopt
a plan of
complete liquidation pursuant to Section 7.03(a)(i) hereof to sell all
of its
property (each such option, a “Call Option”); provided,
however,
that
any purchase of the Trust Fund’s property on or before the Distribution Date
that is one year after the Initial Optional Termination Date shall be made
by
the Bid Holder pursuant to Section 7.01(d) below. Upon exercise of such
option,
the property of the Trust Fund shall be sold to the Master Servicer at
a price
(the “Termination Price”) equal to the sum of (i) 100% of the unpaid principal
balance of each Mortgage Loan on the day of such purchase plus interest
accrued
thereon at the applicable Mortgage Rate with respect to any Mortgage Loan
to the
Due Date in the Collection Period immediately preceding the related Distribution
Date to the date of such repurchase, (ii) the fair market value of any
REO
Property and any other property held by any 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), (iii) any
unreimbursed Servicing Advances and (iv) any Net Swap Payment remaining
unpaid
and any Swap Termination Payment payable to the Swap Counterparty as a
result of
a termination pursuant to this Section 7.01; 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 Termination 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”). The Master Servicer, the Servicer, the Trustee, the
Securities Administrator and the Custodian shall be reimbursed from the
Termination Price for any Mortgage Loan or related REO Property for any
Advances
made or other amounts advanced with respect to the Mortgage Loans that
are
reimbursable to any such entity under this Agreement, the Servicing Agreement
or
the Custodial Agreement, together with any accrued and unpaid compensation
and
any other amounts due to the Master Servicer, the Securities Administrator
or
the Trustee hereunder or the Servicer or the Custodian. If the Master Servicer
fails to exercise such option, the NIMS Insurer will have the right to
cause the
Master Servicer to exercise such option, to the extent provided in the
insurance
agreement related to the NIM Securities among the Master Servicer, the
Trustee
and the NIMS Insurer, so long as such NIMS Insurer is insuring the NIM
Securities or is owed any amounts in connection with such guaranty of the
NIM
Securities. If any NIMS Insurer directs the Master Servicer to exercise
its
right to cause the Trust Fund to adopt a plan of complete liquidation as
described above, then (i) the Master Servicer shall cause the Trust Fund
to
adopt a plan of complete liquidation as described above, (ii) the NIMS
Insurer
shall remit the Termination 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) upon termination
of the Trust Fund, the Trustee will transfer the property of the Trust
Fund to
the NIMS Insurer. The NIMS Insurer shall be obligated to reimburse the
Master
Servicer and the Trustee for its reasonable out-of-pocket expenses incurred
in
connection with its termination of the Trust Fund 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
arising out of or relating to the Master Servicer’s termination of the Trust
Fund 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
negligence, bad faith or willful misconduct.
147
(c) On
any
Distribution Date occurring on or after the Initial Optional Termination
Date
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 Lower Tier REMIC 1
Uncertificated Regular Interests. Upon exercise of such option, the Lower
Tier
REMIC 1 Uncertificated Regular Interests shall be sold to the Master Servicer
at
a price (the “Lower Tier REMIC 1 Uncertificated Regular Interests Purchase
Price”) equal to the sum of (i) 100% of the unpaid principal balance of each
Mortgage Loan on the day of such purchase plus interest accrued thereon
at the
applicable Mortgage Rate with respect to any 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 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 REMIC created pursuant to
this
Agreement (other than 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 Lower Tier REMIC 1 Uncertificated Regular
Interests
and the Class LT-R Certificates will evidence the entire beneficial interest
in
the property of the Trust Fund. Following a purchase of the Lower Tier
REMIC 1
Uncertificated Regular Interests pursuant to this subsection, the Trust
Fund
(and REMIC 1) will remain outstanding and final payment on the Certificates
(other than the Class LT-R Certificates) will be made in accordance with
Sections 7.03(a)(iii) and 5.02. The Trust Fund will terminate upon the
occurrence of a Trust Fund Termination Event, in accordance with Section
7.01(a).
148
(d) (i)
Prior
to exercising the Call Option pursuant to Section 7.01(b) or the Regular
Interests Purchase Option pursuant to Section 7.01(c), the Master Servicer
shall
on the first Business Day of the month of the occurrence of the Initial
Optional
Termination Date, and for so long as the Master Servicer shall not have
exercised the Call Option or the Regular Interests Purchase Option, on
the first
Business Day of each succeeding month (each, a “Bid Month”), the Master Servicer
shall give written notice in the form attached hereto as Exhibit Y (the
“Call
Option Notice”) to each Call Option Holder.
(ii) Not
later
than three (3) Business Days prior to the related Bid Due Date, the Master
Servicer shall give written notice to each Call Option Holder of the Termination
Price for the related Distribution Date.
(iii) Not
later
than the 15th day (or if such date is not a Business Day, the immediately
succeeding Business Day) of each Bid Month (the “Bid Due Date”), if any Call
Option Holder desires that the Master Servicer exercise the option to purchase
the Mortgage Loans and certain other property of the Trust Fund, such Call
Option Holder shall give written notice in the form attached hereto as
Exhibit Z
(the “Purchaser Call Option Notice”) to the Master Servicer, requesting that the
Master Servicer exercise such option on behalf of such Call Option Holder.
The
Purchaser Call Option Notice shall include the amount to be paid by a Call
Option Holder with respect to the proceeds or assets to be received by
the
Master Servicer for the Mortgage Loans and certain other property of the
Trust
Fund (the “Bid Price”); provided,
that
the Bid Price must be equal to or greater than the Termination
Price.
(iv) One
(1)
Business Day after the related Bid Due Date, the Master Servicer shall
notify
the Call Option Holder, if any, that has submitted the highest Bid Price
(the
“Bid Holder”) that such Bid Holder has the right to direct the Master Servicer
to exercise the option to purchase the Mortgage Loans and certain other
property
of the Trust Fund. The Master Servicer shall thereafter notify any Call
Option
Holder that did not submit the highest Bid Price (or did not submit a Purchaser
Call Option Notice) of the amount of the highest Bid Price. If two or more
Call
Option Holder shall have bid the same Bid Price, the Bid Holder shall be
the
Call Option Holder with the greater Percentage Interest in the NIM Residual
Securities or Class X Certificates, as applicable. If the Master Servicer
does
not receive any Purchaser Call Option Notices by such Bid Due Date, or
if no
Purchaser Call Option Notice specifies a Bid Price equal to or greater
than the
Termination Price, then the Master Servicer shall not exercise the option
to
purchase the Mortgage Loans and certain other property of the Trust Fund
on such
Distribution Date (other than in accordance with clause (vii)
below).
149
(v) Not
later
than three (3) Business Days immediately preceding the Distribution Date
in the
related Bid Month, the Bid Holder shall remit the Bid Price as specified
in the
Purchaser Call Option Notice to the Master Servicer, in immediately available
funds. Upon receipt of such funds from the Bid Holder, the Master Servicer
shall
promptly deposit the Termination Price in the Collection Account for subsequent
deposit in the Certificate Account in accordance with this Trust Agreement.
Any
amounts received by the Master Servicer from the Bid Holder in excess of
the
Termination Price shall be remitted to the Trustee for distribution to
the Call
Option Holders. In no event shall any such excess be treated as being paid
by
any REMIC created hereby.
(vi) If
the
Bid Holder directs the Master Servicer to exercise the option to purchase
the
Mortgage Loans and certain other property of the Trust Fund, then the Master
Servicer shall (i) cause the Trust Fund to adopt a plan of complete liquidation
pursuant to Section 7.03(a)(i) hereof to sell all of its property and (ii)
instruct the Trustee upon termination of the Trust Fund to transfer the
property
of the Trust Fund to the Bid Holder. The Bid Holder shall be obligated
to
reimburse the Master Servicer for its reasonable out-of-pocket expenses
incurred
in connection with its exercise of the option to purchase the Mortgage
Loans and
certain other property of the Trust Fund and to indemnify and hold harmless
the
Master Servicer for any losses, liabilities or expenses resulting from
any
claims directly resulting from or relating to the Master Servicer’s exercise of
such option, except to the extent such losses, liabilities or expenses
arise out
of or result from the Master Servicer’s negligence, bad faith or willful
misconduct. The terms of such expense reimbursement and the extent of such
indemnity may be amended accordant to an agreement between the Master Servicer
and the Bid Holder.
(vii) Commencing
on the Distribution Date of the one year anniversary of the Initial Optional
Termination Date, and on each Distribution Date thereafter, the Master
Servicer
shall have the right to exercise the Call Option or the Regular Interests
Purchase Option. If the Master Servicer desires to exercise the Call Option
or
the Regular Interests Purchase Option, the Master Servicer shall notify
the Call
Option Holders pursuant to a Call Option Notice that it desires to exercise
such
Call Option or such Regular Interest Purchase Option, as applicable, on
the
immediately succeeding Distribution Date. If one or more Call Option Holders
submit a Purchaser Call Option Notice on or before the immediately succeeding
Bid Due Date, then, the Master Servicer shall follow the procedures set
forth in
clauses (iv) through (vi) above. However, if no Call Option Holder submits
a
Purchaser Call Option Notice on or before the immediately succeeding Bid
Due
Date, then, on the immediately succeeding Distribution Date, the Master
Servicer
may exercise the its right to purchase the Mortgage Loans and other property
of
the Trust Fund pursuant to Section 7.01(b) or the Lower Tier REMIC 1
Uncertificated Regular Interests pursuant to Section 7.01(c).
150
Section
7.02. Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC 1 Uncertificated
Regular Interests.
(a) Notice
of
any Trust Fund Termination Event and notice of the purchase of the Lower
Tier
REMIC 1 Uncertificated Regular Interests, specifying the Distribution Date
upon
which the final distribution to the Certificates (other than the Class
LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests) shall be made, shall be given by the Trustee by first
class
mail to Certificateholders mailed promptly (and in no event later than
five
Business Days) (x) after the Trustee has received notice from the Master
Servicer or the LTURI-holder, as applicable, of its election to cause (1)
the
sale of all of the property of the Trust Fund pursuant to Section 7.01(b)
or (2)
the purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests
pursuant
to Section 7.01(c), or (y) upon the final payment or other liquidation
of the
last Mortgage Loan or REO Property in the Trust Fund. In the case of a
Trust
Fund Termination Event, the Trustee shall also give notice to the Master
Servicer, the Swap Counterparty, the Cap Counterparty, the Securities
Administrator and the Certificate Registrar at the time notice is given
to
Holders.
In
the
case of a Trust Fund Termination Event, such notice shall specify (A) the
Distribution Date upon which final distribution on the Certificates or
Lower
Tier REMIC 1 Uncertificated 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 or Lower Tier REMIC 1 Uncertificated 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 or Lower Tier REMIC 1 Uncertificated Regular Interests, subject
to
the Trustee’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
In
the
case of a purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests,
such notice shall specify (A) the Distribution Date upon which final
distribution on the Certificates (other than the Class LT-R Certificates)
of all
amounts required to be distributed to Certificateholders pursuant to Section
5.02 (other than any distributions to the Class LT-R Certificates in respect
of
REMIC 1) will be made upon presentation and surrender of the Certificates
(other
than the Class LT-R 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 (other than the Class LT-R Certificates) at the office or
agency of
the Trustee therein specified. Upon any such purchase of the Lower Tier
REMIC 1
Uncertificated Regular Interests, the duties of the Certificate Registrar
with
respect to the Certificates other than the Class LT-R Certificate 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 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 the Lower Tier REMIC 1 Uncertificated Regular Interests, all
amounts
that would be distributed on the Certificates (other than the Class LT-R
Certificate and exclusive of amounts payable from any fund held outside
of REMIC
1) absent such purchase shall be payable to the LTURI-holder.
151
(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 Lower Tier REMIC 1 Uncertificated
Regular Interests shall be reimbursed from proceeds received from such
termination or purchase.
Section
7.03. Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC 1
Uncertificated 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(c) 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
Lower
Tier REMIC 1 Uncertificated Regular Interests pursuant to Section 7.01(b)
or
Section 7.01(c), 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 Certificates, in the case of a purchase of the
Lower
Tier REMIC 1 Uncertificated Regular Interests), upon notification by the
Master
Servicer, the Securities Administrator, 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 Lower Tier REMIC 1 Uncertificated Regular Interests,
the Trustee shall adopt a plan of complete liquidation on behalf of each
REMIC
(other than REMIC 1, in the case of a purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests), meeting the requirements of a qualified
liquidation under the REMIC Provisions;
(ii) Any
sale
of the assets of the Trust Fund or the Lower Tier REMIC 1 Uncertificated
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 Certificates, in the case of a purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests);
152
(iii) On
the
date specified for final payment of the Certificates (other than the Class
LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests), the Trustee shall make final distributions of principal
and
interest on such Certificates and shall pay, in the case of a Trust Fund
Termination Event, any Net Swap Termination Payment then remaining unpaid
and
any Swap Termination Payment owed to the Swap Counterparty on the related
Swap
Payment Date (in each case to the extent not paid on previous Swap Payment
Dates) in accordance with Sections 5.01 and 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.
(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(c)
Purchase
Event, the Trustee may request an Opinion of Counsel addressed to the Trustee
(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
Repurchase Right.
The
NIMS
Insurer, if any, may repurchase 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 or Servicing Fees allocable to such Distressed
Mortgage Loan. Any such repurchase shall be accomplished by the NIMS Insurer’s
remittance of the purchase price for the Distressed Mortgage Loan to the
Master
Servicer for deposit into the Collection Account. The NIMS Insurer shall
not use
any procedure in selecting Distressed Mortgage Loans to be repurchased
which
would be materially adverse to Certificateholders.
153
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 Percentage
Interest) of Certificates of each Class affected thereby shall, with the
prior
written consent of any NIMS Insurer, 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 the Trustee during such sixty-day period by such
Certificateholders or any NIMS Insurer; it being understood and intended,
and
being expressly covenanted by each Certificateholder with every other
Certificateholder, any NIMS Insurer, the Securities Administrator 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 the rights of any NIMS Insurer, or to obtain or seek to
obtain
priority over or preference to any other such Holder or any NIMS Insurer,
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, any NIMS
Insurer and the Trustee shall be entitled to such relief as can be given
either
at law or in equity.
154
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 and any NIMS Insurer, within
fifteen days after receipt by the Certificate Registrar of a request by
the
Trustee or any NIMS Insurer 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
any
NIMS Insurer or 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
Securities Administrator, any NIMS Insurer, the Certificate Registrar and
the
Trustee that neither the Depositor, the Master Servicer, the Securities
Administrator, any NIMS Insurer, the Certificate Registrar nor 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 and the Securities Administrator
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, the Securities Administrator and
the
Master Servicer, if made in the manner provided in this Section. Each of
the
Trustee, the Securities Administrator 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.
(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.
155
(c) The
ownership of Certificates or Lower Tier REMIC 1 Uncertificated Regular
Interests
(whether or not such Certificates or Lower Tier REMIC 1 Uncertificated
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
Securities Administrator, any NIMS Insurer, 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 or Lower Tier REMIC 1 Uncertificated
Regular Interest shall bind every future Holder of the same Certificate
or Lower
Tier REMIC 1 Uncertificated Regular Interest and the Holder of every Certificate
or Lower Tier REMIC 1 Uncertificated Regular Interest 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 or Lower Tier REMIC 1 Uncertificated Regular
Interest.
156
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER; CREDIT RISK
MANAGER
Section
9.01. Duties
of the Master Servicer.
The
Certificateholders, by their purchase and acceptance of the Certificates
or
Lower Tier REMIC 1 Uncertificated 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. Notwithstanding anything in this
Agreement, the Servicing Agreement or the Credit Risk Management Agreement
to
the contrary, the Master Servicer shall have no duty or obligation to enforce
the Credit Risk Management Agreement, or to supervise, monitor or oversee
the
activities of the Servicer under its Credit Risk Management Agreement with
respect to any action taken or not taken by the Servicer at the direction
of the
Seller or pursuant to a recommendation of the Credit Risk Manager.
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 be consistent
with
coverage customarily maintained by master servicers of mortgage loans similar
to
the Mortgage Loans and the Master Servicer shall provide the Trustee and
any
NIMS Insurer upon request, with a copy of such policy and fidelity bond.
The
Master Servicer shall (i) require the Servicer to maintain an Errors and
Omissions Insurance Policy and the Servicer Fidelity Bond in accordance
with the
provisions of the Servicing Agreement, (ii) cause the 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 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 and any NIMS Insurer
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 and any NIMS Insurer, 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 and any NIMS Insurer 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 and any NIMS Insurer. 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 Servicer under any such bond or policy shall be
remitted
to the Master Servicer to the extent provided in the Servicing
Agreement.
157
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 and the Depositor a copy of the annual audited
financial statements of its corporate parent on or prior to March 31st
of each
year commencing on March 31, 2008. 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.
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 the Servicer shall have full power and authority
(to the
extent provided in the 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 Servicing
Agreement, as applicable; provided that the Master Servicer shall not take,
or
knowingly permit the 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 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
the
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 the Servicer, and the Servicer, to the extent such authority is delegated
to
the Servicer under the Servicing Agreement, is hereby authorized and empowered
by the Trustee when the Master Servicer or the Servicer, as the case may
be,
believes it appropriate in its best judgment and in accordance with Accepted
Servicing Practices and the 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 furnish
to
the Master Servicer, upon request, with any powers of attorney empowering
the
Master Servicer or the Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge,
and to
foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Mortgage Loans
or the
Mortgaged Property, in accordance with the 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 the 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
the Servicer). If the Master Servicer or the Trustee has been advised that
it is
likely that the laws of the state in which action is to be taken prohibit
such
action if taken in the name of the Trustee or that the Trustee would be
adversely affected under the “doing business” or tax laws of such state if such
action is taken in its name, 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 no event shall the Master Servicer, without
the
Trustee’s written consent: (i) initiate any action, suit or proceeding solely
under the Trustee’s name without indicating the Master Servicer in its
applicable, representative capacity, so long as the jurisdictional and
procedural rules will allow for this insertion to occur, (ii) initiate
any
action, suit or proceeding not directly relating to the servicing of a
Mortgage
Loan (including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or the Transferor for breaches
of
representations and warranties) solely under the Trustee’s name, (iii) engage
counsel to represent the Trustee in any action, suit or proceeding not
directly
relating to the servicing of a Mortgage Loan (including but not limited
to
actions, suits or proceedings against Certificateholders, or against the
Depositor or the Transferor for breaches of representations and warranties),
or
(iv) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any action with the intent to
cause,
and that actually causes, the Trustee to be registered to do business in
any
state. The Master Servicer shall indemnify the Trustee for any and all
costs,
liabilities and expenses incurred by the Trustee in connection with the
negligent or willful misuse of such powers of attorney by the Master Servicer.
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 on behalf of the Trust Fund, be
deemed
to be the agent of the Trustee.
158
(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall
employ
procedures and exercise the same care that it customarily employs and
exercises
in 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
(ii) extend the due dates for payments due on a Mortgage Note; provided,
however, that
the
maturity of any Mortgage Loan shall not be extended past the Final Scheduled
Distribution Date. In the event of any such modification, the Servicer
or the
Master Servicer shall calculate the Scheduled Payment for such Mortgage
Loan
based on the modified terms of the Mortgage Loan and shall only be required
to
make Advances pursuant to Section 5.04 to the extent of the new Scheduled
Payments. 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 related Servicer, reasonably foreseeable,
(2) in the case of a waiver of a Prepayment Premium, if (a) 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 (i)
collection of the Prepayment Premium would be in violation of applicable
law or
(ii) 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) such modification, waiver or amendment
would not cause an Adverse REMIC Event.
159
(c) As
an
alternative to permitting a modification or effectuating a foreclosure
or other
conversion of the ownership of a Mortgaged Property, the Master Servicer
may, at
its option, purchase any Mortgage Loan that has become one hundred and
twenty
(120) days or more delinquent in payment (including, for the avoidance
of doubt,
any Mortgage Loan with respect to which the related borrower is in Bankruptcy);
provided,
however,
that
(i) the Master Servicer promptly notifies the Servicer of its intention
to
purchase any such delinquent Mortgage Loan prior to its purchase and (ii)
the
Master Servicer shall exercise any such option to purchase a Mortgage Loan
within sixty (60) days after any such Mortgage Loan has become one hundred
and
twenty (120) days delinquent. The price at which the Master Servicer shall
purchase any such delinquent Mortgage Loan shall equal the Purchase Price
and
such amount shall be deposited into the Collection Account on the date
of
purchase pursuant to Section 4.01(d)(viii). Upon receipt by the Trustee
of a
written certification from the Master Servicer that the Master Servicer
has
exercised such option and deposited the full amount of the Purchase Price
of the
related Mortgage Loan in the Collection Account and delivery of a Request
for
Release of Documents (on the form attached hereto as Exhibit C or in the
form
attached to the Custodial Agreement), the Custodian shall release the related
Mortgage File to or upon the order of the Master Servicer, and at the written
request of the Master Servicer the Trustee shall execute and deliver such
instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be necessary to vest title to such
Mortgage
Loan in the Master Servicer or its designee, which instruments shall be
prepared
by the Master Servicer.
Section
9.05. Enforcement
of Servicer’s and Master Servicer’s Obligations.
(a) The
Servicing Agreement requires the Servicer 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 the Servicer on behalf of the Master Servicer. Any fees and other amounts
payable to the Servicer shall be deducted from amounts remitted to the
Master
Servicer by the Servicer (to the extent permitted by the Servicing Agreement)
and shall not be an obligation of the Trust Fund, the Trustee or the Master
Servicer.
160
(b) The
Master Servicer shall not be required to (i) take any action with respect
to the
servicing of any Mortgage Loan that the Servicer is not required to take
under
the Servicing Agreement and (ii) cause the Servicer to take any action
or
refrain from taking any action if the 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, any NIMS Insurer and the
Certificateholders, shall enforce the obligations of the Servicer under
the
Servicing Agreement, and shall, in the event that the Servicer fails to
perform
its obligations in accordance therewith, terminate the rights and obligations
of
the 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 the Servicing
Agreement and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Master Servicer,
in
its good faith business judgment, would require were it the owner of the
related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement
at
its own expense, 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.
(d) The
Master Servicer shall be entitled to conclusively rely on any certifications
or
other information provided by the Servicer under the terms of the Servicing
Agreement, in its preparation of any certifications, 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 Servicing Agreement, the Master Servicer shall cause
the
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 the 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 Servicing Agreement.
The
Servicer shall be entitled to all investment income not required to be
paid to
Mortgagors on any Escrow Account maintained by the Servicer. The Master
Servicer
shall make (or cause to be made) to the extent provided in the 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 Servicer has determined that the funds so advanced are recoverable
from
escrow payments, reimbursement pursuant to Section 4.02 or
otherwise.
161
(b) Costs
incurred by the Master Servicer or by the 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.
Section
9.07. Termination
of Servicing Agreement; Successor Servicers.
(a) The
Master Servicer shall be entitled to terminate the rights and obligations
of the
Servicer under the Servicing Agreement in accordance with the terms and
conditions of the Servicing Agreement and without any limitation by virtue
of
this Agreement; provided,
however,
that in
the event of termination of the Servicing Agreement by the Master Servicer,
the
Master Servicer shall provide for the servicing of the Mortgage Loans by
a
successor Servicer to be appointed as provided in the Servicing
Agreement.
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 the 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 of 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 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 the same obligations
to make Advances as the Servicer under the Servicing Agreement and to reimburse
itself for unreimbursed Advances if required by the Servicing Agreement
but 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
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, the Trustee and any
NIMS
Insurer.
162
Section
9.08. Master
Servicer Liable for Enforcement.
Notwithstanding
anything contained in the Servicing Agreement to the contrary, the Master
Servicer shall remain obligated and liable to the Trustee, any NIMS Insurer
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 the Servicing Agreement. 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 the Servicing Agreement
for the
benefit of the Certificateholders and any NIMS Insurer. The Master Servicer
shall be entitled to enter into any agreement with the 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 the Servicer in the performance by the Servicer of its obligations
under the Servicing Agreement.
Section
9.09. No
Contractual Relationship Between the Servicer and Trustee or Depositor.
The
Servicing Agreement that may be entered into and any other transactions
or
services relating to the Mortgage Loans involving the Servicer in its capacity
as such and not as an originator shall be deemed to be between the Servicer,
the
Seller and the Master Servicer, and the Trustee, any NIMS Insurer and the
Depositor shall not be deemed parties thereto and shall have no obligations,
duties or liabilities with respect to the Servicer except as set forth
in
Section 9.10 hereof, but shall have rights thereunder as third party
beneficiaries. It is furthermore understood and agreed by the parties hereto
that the obligations of the Servicer are set forth in their entirety in
the
Servicing Agreement and the Servicer has no obligations under and is not
otherwise bound by the terms of this Agreement.
Section
9.10. Assumption
of Servicing Agreement by Securities Administrator.
(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 Securities Administrator receives
written notice from the Trustee pursuant to Section 6.14 or Section 9.28,
as
applicable, the Securities Administrator shall thereupon assume all of
the
rights and obligations of such Master Servicer hereunder and under the
Servicing
Agreement entered into with respect to the Mortgage Loans. The Securities
Administrator, its designee or any successor master servicer appointed
by the
Securities Administrator shall be deemed to have assumed all of the Master
Servicer’s interest herein and therein to the same extent as if the 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 the Servicing Agreement accruing prior to its replacement
as Master Servicer, and shall be liable to the Securities Administrator,
the
Trustee and any NIMS Insurer, and hereby agrees to indemnify and hold harmless
the Securities Administrator, the Trustee and any NIMS Insurer from and
against
all costs, damages, expenses and liabilities (including reasonable attorneys’
fees) incurred by the Securities Administrator, the Trustee or any NIMS
Insurer
as a result of such liability or obligations of the Master Servicer and
in
connection with the Securities Administrator’s (or other successor master
servicer’s) assumption (but not its performance, except to the extent that costs
or liability of the Securities Administrator (or other successor master
servicer’s) 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.
163
(b) The
Master Servicer that has been terminated shall, upon request of the Securities
Administrator but at the expense of such Master Servicer, deliver to the
assuming party all documents and records relating to the 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 the Servicing Agreement to the assuming party.
Section
9.11. Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the Servicing Agreement, to the extent Mortgage Loans
contain
enforceable due-on-sale clauses, the Master Servicer shall cause the Servicer
to
enforce such clauses in accordance with the 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 Servicing Agreement, and,
as a
consequence, a Mortgage Loan is assumed, the original Mortgagor may be
released
from liability in accordance with the Servicing Agreement.
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
will,
or will cause the Servicer to, promptly notify the Trustee (or the Custodian)
and the Securities Administrator 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 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 Custodial Agreement)
the
Trustee or the Custodian, to deliver to the Servicer the related Mortgage
File.
Upon receipt of such certification and request, the Trustee or the Custodian
(with the consent, and at the direction of the Trustee), shall promptly
release
the related Mortgage File to the Servicer and the Trustee shall have no
further
responsibility with regard to such Mortgage File. Upon any such payment
in full,
the Master Servicer is authorized, and the Servicer, to the extent such
authority is provided for under the 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.
164
(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 Servicing Agreement,
the Trustee shall execute such documents as shall be prepared and furnished
to
the Trustee by the Master Servicer, or by the Servicer (in form reasonably
acceptable to the Trustee) and as are necessary to the prosecution of any
such
proceedings. The Trustee or the Custodian, shall, upon request of the Master
Servicer, or of the Servicer, and delivery to the Trustee or the Custodian,
of a
request for release of documents and a 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 Servicer).
Such
receipt shall obligate the Master Servicer or Servicer to return the Mortgage
File to the Trustee or the Custodian, as applicable, when the need therefor
by
the Master Servicer or Servicer no longer exists unless the Mortgage Loan
shall
be liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that hereinabove specified, the receipt shall be released
by
the Trustee or the Custodian, as applicable, to the Master Servicer (or
the
Servicer).
Section
9.13. Documents,
Records and Funds in Possession of Master Servicer to be Held for Trustee.
(a) The
Master Servicer shall transmit, or cause the Servicer to transmit, to the
Trustee such documents and instruments coming into the possession of the
Master
Servicer or the Servicer from time to time as are required by the terms
hereof
or of the Servicing Agreement to be delivered to the Trustee or the Custodian.
Any funds received by the Master Servicer or by the Servicer in respect
of any
Mortgage Loan or which otherwise are collected by the Master Servicer or
the
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 the Servicer to retain its Servicing
Fee
and other amounts as provided in the Servicing Agreement. The Master Servicer
shall, and shall (to the extent provided in the Servicing Agreement) cause
the
Servicer to, provide access to information and documentation regarding
the
Mortgage Loans (i) to the Trustee, any NIMS Insurer, their respective agents
and
accountants at any time upon reasonable request and during normal business
hours
and (ii) 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, in
each
case to the extent so required by applicable regulations of the Office
of Thrift
Supervision or such 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 the 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 the
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 the 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 the Servicer under this Agreement or the Servicing Agreement
and
shall be authorized to remit such funds to the Securities Administrator
in
accordance with this Agreement.
165
(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, the Servicer or the Master Servicer that are
collected by the 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 the
Servicer is entitled under the 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 the
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 the
Servicer shall be held by the Master Servicer or the 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 the 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, any NIMS
Insurer, the Securities Administrator and the Trustee, for the benefit
of the
Certificateholders, as of the Closing Date that:
(i) it
is
validly existing and in good standing under the laws of the state of
its
organization, 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
company action on the part of the Master Servicer;
166
(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 certificate of formation or limited liability company
agreement, (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 certificate of formation or limited liability company agreement
provision, or any other company 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;
167
(ix) the
consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Master Servicer;
(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 Documents 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 Securities Administrator,
the
Trustee and any NIMS Insurer and hold them harmless against any loss, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments,
and
other costs and expenses arising out of or related to 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 Trustee,
the
Securities Administrator and any NIMS Insurer as provided in this Section
constitutes the sole remedy (other than as set forth in Section 6.14) of
the
Depositor, the Trustee, the Securities Administrator and any NIMS Insurer,
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
Securities Administrator, the Trustee or any NIMS Insurer or notice thereof
by
any one of such parties to the other parties.
(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 it 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.
(d) Any
cause
of action against the Master Servicer relating to or arising out of the
breach
of any representations and warranties made in this Section shall accrue
upon
discovery of such breach by either the Depositor, the Master Servicer,
the
Securities Administrator, the Trustee or any NIMS Insurer 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).
168
Section
9.15. Opinion.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered
to the
Depositor, the Seller, the Trustee, the Swap Counterparty and any NIMS
Insurer
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 the Servicer, standard fire and
casualty
insurance and, where applicable, flood insurance, all in accordance with
the
provisions of this Agreement and the Servicing Agreement, as applicable.
It is
understood and agreed that such insurance shall be with insurers meeting
the
eligibility requirements set forth in the 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 the
Servicer, under any insurance policies maintained pursuant to this Section
9.16
or the 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 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 the 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 the Servicer pursuant to Section
4.02.
Section
9.17. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall cause the Servicer (to the extent provided in the
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 the 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 as a condition requisite to the presentation of claims on the
related
Mortgage Loan to the insurer under any applicable Insurance Policy need
not be
so deposited (or remitted).
169
Section
9.18. Maintenance
of the Primary Mortgage Insurance Policies.
(a) The
Master Servicer shall cause Xxxxx Fargo Bank, N.A. to remit insurance premiums
relating to existing lender-paid Primary Mortgage Insurance Policies acquired
by
Xxxxx Fargo Bank, N.A. prior to the Closing Date. The Master Servicer shall
not
take, or knowingly permit the Servicer (consistent with the 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 the Servicer, would have been covered thereunder. The
Master
Servicer shall not, and shall not knowingly permit the 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 Servicing Agreement, as applicable.
(b) The
Master Servicer agrees, to the extent provided in the Servicing Agreement,
to
cause the 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 the Servicer under any Primary Mortgage
Insurance Policies shall be deposited in the Collection Account, subject
to
withdrawal pursuant to Section 4.02.
Section
9.19. Trustee
To Retain Possession of Certain Insurance Policies and Documents.
The
Trustee (or the 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 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 the Servicer to deliver to the Trustee (or the
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 the Servicer from
time
to time.
Section
9.20. [Reserved]
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 Premiums) shall be retained by the Master Servicer (or the 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 Sections 4.01(e) and 4.04(c), all income and gain
realized from any investment of funds in the Collection Account and Certificate
Account shall be for the benefit of the Master Servicer as additional
compensation. The provisions of this Section 9.21 are subject to the provisions
of Section 6.14.
170
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 Servicer, to
the
extent provided in the Servicing Agreement any REO Property as expeditiously
as
possible and in accordance with the provisions of this Agreement and the
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 Servicer to protect and conserve, such REO Property
in
the manner and to such extent required by the 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 the Servicer, in connection with the
operation
of any REO Property in the Collection Account.
(c) The
Master Servicer and the 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 the
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 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 on the next succeeding Master Servicer Remittance Date
to the
Securities Administrator for
deposit into the Securities Administration Account.
171
Section
9.23. Notices
to the Depositor and the Securities Administrator
(a) The
Master Servicer shall promptly notify the Securities Administrator, the
Sponsor
and the Depositor (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 to the Master Servicer and the Depositor) at any time an affiliate
of
any of the parties listed on Exhibit V to this Agreement. On or before
March
1st
of each
year, the Depositor shall distribute the information in Exhibit V hereto
to the
Master Servicer.
(b) Not
later
than four Business Days prior to the Distribution Date of each month, the
Master
Servicer shall provide to the Securities Administrator, the Sponsor and
the
Depositor notice of the occurrence of any material modifications, extensions
or
waivers of terms, fees, penalties or payments relating to the Mortgage
Loans
during the related Collection Period or that have cumulatively become material
over time (Item 1121(a)(11) of Regulation AB) along with all information,
data,
and materials related thereto as may be required to be included in the
related
Distribution Report on Form 10-D. The parties to this Agreement acknowledge
that
the performance by the Master Servicer of its duties under this Section
9.23(b)
related to the timely preparation and delivery of such information is contingent
upon the Servicer strictly observing all requirements and deadlines in
the
performance of their duties under the Servicing Agreement. The Master Servicer
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 deliver all
such
information where such failure results from the Master Servicer’s inability or
failure to obtain or receive, on a timely basis, any information from the
Servicer needed to prepare or deliver such information, which failure does
not
result from the Master Servicer’s own negligence, bad faith or willful
misconduct.
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 and the Securities Administrator 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, any NIMS Insurer and 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)).
(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 Servicer or
by the
Depositor.
172
(c) All
information, reports and statements prepared by the Master Servicer under
this
Agreement shall be based on 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 2008, the Master Servicer, the Credit
Risk
Manager, the Paying Agent (if other than the Trustee), the Trustee (if
it has
been a Servicing Function Participant at any time during the fiscal year
covered
by the Form 10-K) and the Securities Administrator, each at its own expense,
shall furnish, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Sponsor,
the Depositor, the Master Servicer and the Securities Administrator, a
report on
an assessment of compliance with the Relevant Servicing Criteria that contains
(A) a statement by such party of its responsibility for assessing compliance
with the Relevant Servicing Criteria, (B) a statement that such party used
the
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, the Credit Risk Manager, the Paying Agent, the Trustee
and the
Securities Administrator (or any Servicing Function Participant engaged
by such
party) submit their assessments to the Securities Administrator, such parties
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 Securities Administrator what Relevant
Servicing Criteria will be addressed in any such reports prepared by any
such
Servicing Function Participant.
(iii) Promptly
after receipt of each report on assessment of compliance, the Securities
Administrator shall confirm that the assessments, taken as a whole, address
all
applicable 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 S
and on any similar exhibit set forth in the Servicing Agreement in respect
of
the Servicer, and the Custodial Agreement in respect of the Custodian,
and shall
notify the Depositor of any exceptions.
173
(b) Attestation
Reports
(i) By
March
15 of each year, commencing in March 2008, the Master Servicer, the Credit
Risk
Manager, the Paying Agent (if other than the Trustee), the Trustee (if
it has
been a Servicing Function Participant at any time during the fiscal year
covered
by the Form 10-K) and the Securities Administrator, each at its own expense,
shall cause, and each such party shall cause any Servicing Function Participant
engaged by it to cause, each at its own expense, a registered public accounting
firm (which may also render other services to the Master Servicer, the
Credit
Risk Manager, the Paying Agent, the Trustee and the Securities Administrator,
as
the case may be) that is a member of the American Institute of Certified
Public
Accountants to furnish a report to the Sponsor, the Depositor, the Master
Servicer and the Securities Administrator, 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, the Credit Risk
Manager,
the Paying Agent (if other than the Trustee), the Trustee, the Securities
Administrator or any Servicing Function Participant engaged by such parties,
the
Securities Administrator 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.
(iii) The
Master Servicer’s, Trustee’s and Paying Agent’s obligation to provide
assessments of compliance and attestations under this Section 9.25 shall
terminate upon the filing of a Form 15 suspension notice on behalf of the
Trust
Fund.
Section
9.26. Annual
Statement of Compliance with Applicable Servicing Criteria.
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
Trustee and the Securities Administrator on or before March 15 of each
year,
commencing in March 2008, an Officer’s Certificate stating, as to the signer
thereof, that (A) a review of such party’s activities during the preceding
calendar year or portion thereof and of such party’s performance under this
Agreement, or such other applicable agreement in the case of 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.
174
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 and 9.29 hereof, the Master Servicer
shall
not resign from the obligations and duties hereby imposed on it unless
it
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 and any NIMS Insurer. No such resignation shall
become
effective until the Securities Administrator shall have assumed, or a successor
master servicer acceptable to any NIMS Insurer and the Securities Administrator
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, the Securities Administrator
and any
NIMS Insurer.
Section
9.29. Assignment
or Delegation of Duties by the Master Servicer.
(a) 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, Subcontractor
or 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, the Securities Administrator, any NIMS Insurer 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, and the name of any such
affiliated Subcontractor or Subservicer shall be given promptly by the
Master
Servicer to the Depositor, the Trustee, the Securities Administrator and
any
NIMS Insurer. 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.
175
(b) Notwithstanding
the foregoing, for so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Master
Servicer
shall not utilize any Subcontractor for the performance of its duties hereunder
if such Subcontractor would be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB without (i) giving notice to
the
Securities Administrator and the Depositor and (ii) requiring any such
Subcontractor to provide to the Master Servicer an attestation report as
provided for in Section 9.25(b) and an assessment report as provided in
Section
9.25(a), which reports the Master Servicer shall include in its attestation
and
assessment reports.
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.
(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 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 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, the
Seller
and the Depositor 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.
176
The
Master Servicer shall not be liable for any acts or omissions of the Servicer.
In particular, the Master Servicer shall not be liable for any course of
action
taken by the Servicer with respect to loss mitigation of defaulted Mortgage
Loans at the direction of the Credit Risk Manager or the Seller pursuant
to the
Credit Risk Management Agreement. Further, the Master Servicer shall not
be
liable for performance by the Servicer under the Credit Risk Management
Agreement.
Section
9.31. Indemnification;
Third-Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Sponsor, the Securities
Administrator, the Trustee and any NIMS Insurer 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 Trustee, the Securities Administrator or
any
NIMS Insurer may sustain arising out of or based upon (a) any material
breach by
the Master Servicer of any if its obligations hereunder, including particularly
its obligations to provide any reports under Sections 9.25(a), 9.25(b)
or 9.26
or any information, data or materials required to be included in any Exchange
Act report, (b) any material misstatement or omission in any information,
data
or materials provided by 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 Trustee, the Securities Administrator
and any NIMS Insurer 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 Trustee, the Securities Administrator
or any NIMS Insurer 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. This indemnification shall survive the termination of this Agreement
or
the termination of the Master Servicer as a party to this
Agreement.
Section
9.32. Special
Servicing of Delinquent Mortgage Loans.
If
permitted under the terms of the Servicing Agreement, the Seller may appoint,
pursuant to the terms of the Servicing Agreement and with the written consent
of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
and any NIMS Insurer, a special servicer to special service any Distressed
Mortgage Loans. Any applicable termination fee related to the termination
of the
Servicer and the appointment of any special servicer shall be paid by the
Seller
from its own funds, without right of reimbursement from the Trust Fund.
Any fees
paid to any such special servicer shall not exceed the Servicing Fee
Rate.
177
Section
9.33. Alternative
Index.
In
the
event that the Index for any Mortgage Loan, as specified in the related
Mortgage
Note, becomes unavailable for any reason, the Master Servicer shall select
an
alternative index, which in all cases shall be an index that constitutes
a
qualified rate on a regular interest under the REMIC Provisions, in accordance
with the terms of such Mortgage Note or, if such Mortgage Note does not
make
provision for the selection of an alternative index in such event, the
Master
Servicer shall, subject to applicable law, select an alternative index
based on
information comparable to that used in connection with the original Index
and,
in either case, such alternative index shall thereafter be the Index for
such
Mortgage Loan.
Section
9.34. Duties
of the Credit Risk Manager.
(a) The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager. For
and on
behalf of the Depositor, the Credit Risk Manager will provide reports and
recommendations concerning certain delinquent and defaulted Mortgage Loans,
and
as to the collection of any Prepayment Premiums with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information
provided
pursuant to Credit Risk Management Agreements to the Credit Risk Manager
by the
Servicers. The Credit Risk Manager shall look solely to the Servicers and/or
the
Master Servicer for all information and data (including loss and delinquency
information and data) and loan level information and data relating to the
servicing of the Mortgage Loans and neither the Securities Administrator
nor the
Trustee shall have any obligation to provide any such information to the
Credit
Risk Manager and shall not otherwise have any responsibility under the
Credit
Risk Management Agreement.
(b) On
or
about the 15th
calendar
day of each month, commencing on or about October 15, 2007, the Credit
Risk
Manager shall have prepared and shall make available to any NIMS Insurer,
the
Trustee, the Securities Administrator, the Swap Counterparty and each
Certificateholder, the following reports (each such report to be made in
a
format compatible with XXXXX filing requirements):
(i) Watchlist
Report:
A
listing of individual Mortgage Loans that are of concern to the Credit
Risk
Manager. Each Watchlist Report shall contain a listing of Mortgage Loans
in any
delinquency status, including current and paid-off loans, and may contain
the
comments of the Credit Risk Manager in its sole discretion. The Watchlist
Report
shall be presented in substantially the same format attached hereto as
Exhibit
R-1;
(ii) Loss
Severity Report:
A
compilation and summary of all losses, indicating the loan loss severity
for
each Mortgage Pool. Each Loss Severity Report shall include detail of all
losses
reported by a Servicer or the Master Servicer as Realized Losses, except
those
for which a Servicer or the Master Servicer has not provided detail adequate
for
reporting purposes. The Loss Severity Report shall be presented in substantially
the same format attached hereto as Exhibit R-2;
178
(iii) Prepayment
Premiums Report:
A
summary of Prepayment Premiums assessed or waived by each Servicer. The
Prepayment Premiums Report shall be presented in substantially the same
format
attached hereto as Exhibit R-4; and
(iv) Analytics
Report:
Analytics Reports shall include statistical and/or graphical portrayals
of:
(A) Delinquency
Trend:
The
delinquency trend, over time, of the Mortgage Loans;
(B) Prepayment
Analysis:
The
constant prepayment rate “CPR” experience of the Mortgage Loans;
and
(C) Standard
Default Assumption:
The
Standard Default Assumption experience of the Mortgage Loans.
The
Analytics Report shall be presented in substantially the same format attached
hereto as Exhibit R-5.
The
Credit Risk Manager shall make such reports and any additional information
reasonably requested by the Depositor available each month to
Certificateholders, the Trustee, the Securities Administrator, any NIMS
Insurer
and the Rating Agencies via the Credit Risk Manager’s internet website. The
Credit Risk Manager’s internet website shall initially be located at
xxxxx://xxxxxxx.xxxxxxx.xxx.
The
user name for access to the website shall be the Certificateholder’s e-mail
address and the password shall be “SASCO 2007-WF2.” Neither the Trustee nor the
Securities Administrator shall have any obligation to review such reports
or
otherwise monitor or supervise the activities of the Credit Risk
Manager.
(c) [Reserved]
(d) The
Credit Risk Manager shall reasonably cooperate with the Depositor, the
Trustee
and the Securities Administrator in connection with the Trust Fund’s satisfying
the reporting requirements under the Exchange Act with respect to reports
prepared by the Credit Risk Manager.
(e) The
Credit Risk Manager has not and shall not engage any Subcontractor without
(a)
giving notice to the Sponsor, the Trustee, the Securities Administrator,
the
Master Servicer and the Depositor and (b) requiring any such Subcontractor
to
provide to the Credit Risk Manager an assessment report as provided for
in
Section 9.25(a) above and an attestation report as provided in Section
9.25(b)
above, which reports the Credit Risk Manager shall include in its assessment
and
attestation reports.
(f) By
March
15 of each year (or if such day is not a Business Day, the immediately
preceding
Business Day), the Credit Risk Manager shall deliver a signed certification,
in
the form attached hereto as Exhibit U (the “Credit Risk Manager Certification”),
for the benefit of the Depositor, the Sponsor, the Master Servicer, the
Securities Administrator and the Trustee and for the benefit of the Person(s)
signing the Form 10-K Certification; provided
(i) that
the Credit Risk Manager Certification shall be so provided by March 15
of such
year only to the extent that the Depositor delivers a draft (without exhibits)
of the applicable Annual Report on Form 10-K to the Credit Risk Manager
by the
fifth Business Day in March of such year and (ii) in the event that the
Depositor delivers the draft Form 10-K referred to in clause (i) after
the fifth
Business Day in March of such year, the Credit Risk Manager shall deliver
the
Credit Risk Manager Certification as soon as practicable but no later than
five
calendar days of delivery to the Credit Risk Manager of such draft Form
10-K.
179
(g) In
the
event that prior to the filing date of the Form 10-K in March of each year,
the
Credit Risk Manager has knowledge or information material to the Credit
Risk
Manager Certification, the Credit Risk Manager shall promptly notify the
Depositor, the Trustee and the Securities Administrator, in writing.
Section
9.35. Limitation
Upon Liability of the Credit Risk Manager.
Except
as
provided pursuant to Section 9.36 of this Agreement, neither the Credit
Risk
Manager, nor any of the directors, officers, employees or agents of the
Credit
Risk Manager, shall be under any liability to the Trustee, the Securities
Administrator, the Certificateholders or the Depositor for any action taken
or
for refraining from the taking of any action in good faith pursuant to
this
Agreement, in reliance upon information provided by the Servicer under
the
Credit Risk Management Agreement or for errors in judgment; provided, however,
that
this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
or
by reason of reckless disregard for its obligations and duties under this
Agreement or the Credit Risk Management Agreement. The Credit Risk Manager
and
any director, officer, employee or agent of the Credit Risk Manager may
rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder, and may
rely
in good faith upon the accuracy of information furnished by the Servicer
pursuant to the Credit Risk Management Agreement in the performance of
its
duties thereunder and hereunder.
Section
9.36. Indemnification
by the Credit Risk Manager.
The
Credit Risk Manager agrees to indemnify the Depositor, the Master Servicer,
the
Trustee and the Securities Administrator, and each of 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 the engagement of any Subcontractor in violation of Section 9.34(e)
or any
failure by the Credit Risk Manager to deliver any information, report,
certification, accountants’ letter or other material when and as required under
this Agreement, including any report under Sections 9.25(a) or (b).
Section
9.37. Removal
of Credit Risk Manager.
180
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than a 66-2/3% Voting Interests in the Trust, in the exercise
of its or their sole discretion, at any time, without cause, upon ten (10)
days
prior written notice. The Certificateholders shall provide such written
notice
to the Trustee and upon receipt of such notice, the Trustee shall provide
written notice to the Credit Risk Manager of its removal, effective upon
receipt
of such notice.
181
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 860G(a)(9) of the Code. The latest possible maturity
date for
purposes of Treasury Regulation 1.860G-1(a)(4) will be the Latest Possible
Maturity Date.
(c) The
Securities Administrator shall represent the Trust Fund in any administrative
or
judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto. The Securities Administrator shall
pay
any and all tax related expenses (not including taxes) of each REMIC, including
but not limited to any professional fees or expenses related to audits
or any
administrative or judicial proceedings with respect to such REMIC that
involve
the Internal Revenue Service or state tax authorities, but only to the
extent
that (i) such expenses are ordinary or routine expenses, including expenses
of a
routine audit but not expenses of litigation (except as described in (ii));
or
(ii) such expenses or liabilities (including taxes and penalties) are
attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties
as tax
return preparer). The Securities Administrator shall be entitled to
reimbursement of expenses to the extent provided in clause (i) above from
the
Securities Administration Account, provided,
however,
the
Securities Administrator shall not be entitled to reimbursement for expenses
incurred in connection with the preparation of tax returns and other reports
as
required by Section 6.20 and this Section.
(d) The
Securities Administrator shall prepare, the Trustee shall sign and the
Securities Administrator shall file, all of each REMIC’s federal and appropriate
state tax and information returns as such REMIC’s direct representative. The
expenses of preparing and filing such returns shall be borne by the Securities
Administrator.
(e) The
Securities Administrator or its designee shall perform on behalf of each
REMIC
all reporting and other tax compliance duties that are the responsibility
of
such REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, if required by the Code, the REMIC Provisions,
or other
such guidance, the Securities Administrator shall provide (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 Trustee such information as is necessary for the Trustee to
provide
to the Certificateholders such information or reports as are required by
the
Code or REMIC Provisions.
182
The
Securities Administrator shall be entitled to receive reasonable compensation
from the Trust for the performance of its duties under this subsection
(e);
provided,
however,
that
such compensation shall not exceed $5,000 per year.
(f) The
Trustee, the Securities Administrator, the Master Servicer and the Holders
of
Certificates shall take any action or cause any REMIC to take any action
necessary to create or maintain the status of any REMIC as a REMIC under
the
REMIC Provisions and shall assist each other as necessary to create or
maintain
such status. Neither the Trustee, the Securities Administrator, the Master
Servicer nor the Holder of any Residual Certificate shall knowingly take
any
action, cause any REMIC to take any action or fail to take (or fail to
cause to
be taken) any action that, under the REMIC Provisions, if taken or not
taken, as
the case may be, could result in an Adverse REMIC Event unless the Trustee,
the
Securities Administrator, any NIMS Insurer and the Master Servicer have
received
an Opinion of Counsel addressed to the Trustee and the Securities Administrator
(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 Securities Administrator, the Master Servicer, any NIMS
Insurer
or their respective designees, in writing, with respect to whether such
action
could cause an Adverse REMIC Event to occur with respect to any REMIC,
and no
such Person shall take any such action or cause any REMIC to take any such
action as to which the Trustee, the Securities Administrator, the Master
Servicer or any NIMS Insurer 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,
at
the direction of the Securities Administrator, shall pay any remaining
REMIC
taxes out of current or future amounts otherwise distributable to the Holder
of
the Residual Certificate in any such REMIC or, if no such amounts are available,
out of other amounts held in the Certificate Account, and shall reduce
amounts
otherwise payable to holders of regular interests in any such REMIC, as
the case
may be.
(h) The
Securities Administrator shall, for federal income tax purposes, maintain
books
and records with respect to each REMIC on a calendar year and on an accrual
basis.
(i) No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement.
183
(j)
Neither
the Securities Administrator nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation
for
services.
(k)
On or
before October 15 of each calendar year beginning in 2008, the Securities
Administrator shall deliver to the Trustee and any NIMS Insurer an Officer’s
Certificate stating, without regard to any actions taken by any party other
than
the Securities Administrator, the Securities Administrator’s compliance with
provisions of this Section 10.01.
(l)
The
Securities Administrator shall treat each of the Basis Risk Reserve Fund
and the
Supplemental Interest Trust as an outside reserve fund within the meaning
of
Treasury Regulation Section 1.860G-2(h) that is owned by the Holders of
the
Class X Certificates and that is not an asset of any REMIC and all amounts
deposited into the Basis Risk Reserve Fund or the Supplemental Interest
Trust
shall be treated as amounts distributed to the Class X
Certificateholders.
(m)
For
federal income tax purposes, upon any sale of the property held by the
Trust
Fund pursuant to Section 7.01(b), any NIM Redemption Amount paid by the
Master
Servicer shall not be treated as a portion of the purchase price paid for
such
property but shall instead be treated as an amount paid by the Master Servicer
to the Holder of the Class X Certificates in exchange for an interest in
the
Class X Certificates immediately before the purchase of the property held
by the
Trust Fund.
(n) The
Securities Administrator shall treat the beneficial owners of Certificates
(other than the Class P, Class X, Class LT-R and Class R Certificates)
as having
entered into a notional principal contract with respect to the beneficial
owners
of the Class X Certificates. Pursuant to each such notional principal contract,
all beneficial owners of LIBOR Certificates shall be treated as having
agreed to
pay, on each Distribution Date, to the beneficial owners of the Class X
Certificates an aggregate amount equal to the excess, if any, of (i) the
amount
payable on such Distribution Date on the interest in the Upper Tier REMIC
corresponding to such Class of Certificates over
(ii)
the
amount payable on such Class of Certificates on such Distribution Date
(such
excess, a “Class I Shortfall”). A Class I Shortfall payable from interest
collections shall be allocated to each Class of Certificates 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 3 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. In addition, pursuant
to such
notional principal contract, the beneficial owner of the Class X Certificates
shall be treated as having agreed to pay Basis Risk Shortfalls and Unpaid
Basis
Risk Shortfalls to the Owners of the LIBOR Certificates in accordance with
the
terms of this Agreement. Any payments to the Certificates in light of the
foregoing shall not be payments with respect to a “regular interest” in a REMIC
within the meaning of Code Section 860G(a)(1). However, any payment from
the
Certificates of a Class I Shortfall shall be treated for tax purposes as
having
been received by the beneficial owners of such Certificates in respect
of their
Interests in the Upper Tier REMIC and as having been paid by such beneficial
owners to the Supplemental Interest Trust pursuant to the notional principal
contract. Thus, each Certificate (other than a Class P, Class R and Class
LT-R
Certificates) shall be treated as representing not only ownership of regular
interests in the Upper Tier REMIC, but also ownership of an interest in
(and
obligations with respect to) a notional principal contract. For tax purposes,
the notional principal contract shall be deemed to have a value in favor
of the
Certificates entitled to receive Basis Risk Shortfalls and Unpaid Basis
Risk
Shortfalls of $22,736.92 as of the Closing Date.
184
(o) Notwithstanding
the priority and sources of payments set forth in Article V hereof or otherwise,
the Securities Administrator shall account for all distributions on the
Certificates as set forth in this Section 10.01. In no event shall any
payments
of Basis Risk Shortfalls or Unpaid Basis Risk Shortfalls provided for in
this
Section 10.01 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.
Neither
the Depositor, the Master Servicer nor the Trustee shall sell, dispose
of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust
Fund,
(iii) the termination of 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 the Trustee and any NIMS Insurer has received an Opinion of
Counsel
addressed to the Trustee (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.
Upon
the
occurrence of an Adverse REMIC Event due to the negligent performance by
the
Trustee or the Securities Administrator, as applicable, of its duties and
obligations set forth herein, the Trustee or the Securities Administrator,
as
applicable, shall indemnify any NIMS Insurer, 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
neither the Trustee nor the Securities Administrator shall be liable for
any
such Losses attributable to the action or inaction of the Master Servicer,
the
Depositor, the Class X Certificateholders, the Holder of such Residual
Certificate or the Securities Administrator (with regard to the Trustee),
as
applicable, nor for any such Losses resulting from misinformation provided
by
the Holder of such Residual Certificate on which the Securities Administrator
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 or the Securities Administrator, as applicable,
have any
liability (1) for any action or omission that is taken in accordance with
and in
compliance with the express terms of, or which is expressly permitted by
the
terms of, this Agreement or the Servicing Agreement, (2) for any Losses
other
than arising out of a negligent performance by the Trustee or the Securities
Administrator, as applicable, 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); provided,
however,
that
this sentence shall not apply in connection with any failure by the Securities
Administrator to comply with the provisions of Subsections 6.01(l) hereof
and
Subsections 9.25(a) or (b) hereof. In addition, neither the Trustee nor
the
Securities Administrator shall have any liability for the actions or failure
to
act of any other party hereto.
185
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
Servicing
Agreement, knowingly permit the 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
Servicer to advise, the Trustee and any NIMS Insurer 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 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 Servicer (to the extent provided in its Servicing Agreement)
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
Trustee,
or the Master Servicer, acting on its behalf hereunder, shall, or shall
cause
the Servicer to, continue to attempt to sell the REO Property for its fair
market value for such period longer than three years as such extension
permits
(the “Extended Period”). If the Trustee has not received such an extension and
the Master Servicer or the 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 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 Servicer, before the end of the three year period
or
the Extended Period, as applicable, to (i) purchase such REO Property at
a price
equal to the REO Property’s fair market value or (ii) auction the REO Property
to the highest bidder (which may be the Servicer) in an auction reasonably
designed to produce a fair price prior to the expiration of the three-year
period or the Extended Period, as the case may be.
186
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(c) Purchase Event, this Agreement may be amended
from
time to time by the Depositor, the Master Servicer, the Securities Administrator
and the Trustee, with the consent of any NIMS Insurer, but without the
consent
of (but with notice to) the Credit Risk Manager or the Swap Counterparty
(except
to the extent that the rights or obligations of (1) the Credit Risk Manager
or
the Swap Counterparty hereunder or (2) the Swap Counterparty under the
Swap
Agreement are affected thereby, and except to the extent that the ability
of the
Trustee on behalf of the Supplemental Interest Trust and 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 the 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 as evidenced by an Opinion of Counsel. 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. Prior to entering into any amendment
without the consent of Holders pursuant to this paragraph, the Trustee,
any NIMS
Insurer and the Swap Counterparty shall be provided with notice and an
Opinion
of Counsel addressed to the Trustee, any NIMS Insurer and the Swap Counterparty
(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.
187
(b) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee, with the consent of any NIMS Insurer, but
without
the consent of (but with notice to) the Credit Risk Manager or the Swap
Counterparty (except to the extent that the rights or obligations of (1)
the
Credit Risk Manager or the Swap Counterparty hereunder or (2) the Swap
Counterparty under the Swap Agreement are affected thereby, or the ability
of
the Trustee on behalf of the Supplemental Interest Trust and 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 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, the Securities Administrator,
any NIMS Insurer and the Swap Counterparty receives notice and an Opinion
of
Counsel addressed to the Trustee, the NIMS Insurer and the Swap Counterparty,
at
the expense of the party requesting the change, that such change will not
cause
an Adverse REMIC Event and is permitted hereunder; 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 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 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(c) Purchase Event but on or prior to a Trust Fund Termination
Event, this Agreement may be amended from time to time by the Depositor,
the
Securities Administrator, the Master Servicer, the LTURI-holder and the
Trustee,
but without the consent of the Credit Risk Manager or the Swap Counterparty
(except to the extent that the rights or obligations of (1) the Credit
Risk
Manager or the Swap Counterparty hereunder or (2) the Swap Counterparty
under
the Swap Agreement are affected thereby, and except to the extent the ability
of
the Trustee on behalf of the Supplemental Interest Trust and the Trust
Fund to
perform fully and timely its obligations under the Swap Agreement is adversely
affected, in which case prior written consent of Credit Risk Manager or
the Swap
Counterparty, as applicable, is required). Prior to entering into any amendment
pursuant to this paragraph, the Trustee and the Swap Counterparty shall
be
provided with notice and an Opinion of Counsel addressed to the Trustee,
any
NIMS Insurer and the Swap Counterparty (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.
188
(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, any NIMS Insurer 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.
(f) Notwithstanding
anything to the contrary in the Servicing Agreement, the Trustee shall
not
consent to any amendment of the Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in Section 11.03(a) or 11.03(b)
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, the Securities
Administrator and the Trustee to the extent necessary, in the judgment
of the
Depositor and its counsel, to comply with the Rules.
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 Percentage Interest),
Certificates owned by the Depositor, the Master Servicer, the Securities
Administrator, the Trustee, the Servicer, the Credit Risk Manager or Affiliates
thereof are not to be counted so long as such Certificates are owned by
the
Depositor, the Master Servicer, the Securities Administrator, the Trustee,
the
Servicer, the Credit Risk Manager or any Affiliate thereof.
Section
11.05. Provision
of Information.
(a) For
so
long as any of the Certificates of any Series or Class are “restricted
securities” within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer and the Securities Administrator agree to
cooperate with each other to provide to any Certificateholders, any NIM
Security
holder and to any prospective purchaser of Certificates designated by such
holder, upon the request of such holder or prospective purchaser, any
information required to be provided to such holder or prospective purchaser
to
satisfy the condition set forth in Rule 144A(d)(4) under the Securities
Act. Any
reasonable, out-of-pocket expenses incurred by the Master Servicer or the
Securities Administrator in providing such information shall be reimbursed
by
the Depositor.
(b) The
Securities Administrator shall provide 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 or
Form
10-K filed with the Securities and Exchange Commission pursuant to Section
6.20(c) and (ii) a copy of any other document incorporated by reference
in the
Prospectus. Any reasonable out-of-pocket expenses incurred by the Securities
Administrator in providing copies of such documents shall be reimbursed
by the
Depositor.
189
(c) On
each
Distribution Date, the Securities Administrator shall deliver or cause
to be
delivered by first class mail or make available on its website to the Depositor,
Attention: Contract Finance, 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,
00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Mortgage Finance SASCO 2007-WF2,
(b) in the case of the Seller, Xxxxxx Brothers Holdings Inc., 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Mortgage Finance SASCO
2007-WF2,(c) in the case of the Trustee, the 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, SASCO 2007-WF2,
(e) in
the case of the Securities Administrator, Xxxxx Fargo Bank, N.A., X.X.
Xxx 00,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager SASCO 2007-WF2, telecopy
number 000-000-0000, and for overnight deliveries 0000 Xxx Xxxxxxxxx Xx.,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager SASCO 2007-WF2, telecopy
number 000-000-0000 (f) in the case of the Swap Counterparty, at the address
therefore set forth in the Swap Agreement, (g) in the case of the Cap
Counterparty, at the address therefore set forth in the Interest Rate Cap
Agreement and (h) in the case of the Credit Risk Manager, Xxxxxxx Fixed
Income
Services Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000,
Attention: General Counsel, 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.
190
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.
The
Depositor shall promptly notify the Custodian and the Trustee in writing
of the
issuance of any Class of NIMS Securities insured by a NIMS Insurer and
the
identity of such NIMS Insurer. Thereafter, any such NIMS Insurer shall
be deemed
a third-party beneficiary of this Agreement to the same extent as if it
were a
party hereto, and shall be subject to and have the right to enforce the
provisions of this Agreement so long as the NIMS Securities remaining
outstanding or such NIMS Insurer is owed amounts in respect of its guarantee
of
payment of such NIMS Securities. 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 Swap Counterparty
and its successors and assignees under the Swap Agreement, the Holders
of the
Certificates and the NIMS Insurer, any benefit or any legal or equitable
right,
power, remedy or claim under this Agreement, except to the extent specified
in
Sections 5.08 and 11.15, as applicable.
Section
11.12. Special
Notices to the Rating Agencies and any NIMS Insurer.
(a) The
Depositor shall give prompt notice to the Rating Agencies and any NIMS
Insurer
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;
191
(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 the Servicer under the Servicing
Agreement.
(b) All
notices to the Rating Agencies provided for in this Section shall be in
writing
and sent by first class mail, telecopy or overnight courier, as
follows:
If
to
DBRS, to:
DBRS,
Inc.
00
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
Fitch, to:
Fitch,
Inc.
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
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
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
(c) The
Securities Administrator shall provide or make available to the Rating
Agencies
reports prepared pursuant to Section 4.03. In addition, the Securities
Administrator 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 Securities
Administrator.
192
Section
11.13. Conflicts.
To
the
extent that the terms of this Agreement conflict with the terms of the
Servicing
Agreement, the Servicing Agreement shall govern, unless such provisions
shall
adversely affect the Trustee or the Trust Fund.
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
Securities Administrator, the Swap Counterparty, any NIMS Insurer and the
Trustee thirty days prior to any proposed transfer or assignment by such
Seller
of its rights under the Servicing Agreement or of the servicing thereunder
or
delegation of its rights or duties thereunder or any portion thereof to
any
other Person other than the initial Servicer under the Servicing Agreement;
provided that the Seller shall not be required to provide prior notice
of any
assignment of any Servicing rights from the Seller to an affiliate of the
Seller. 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 to a successor servicer shall be subject to the following
conditions:
(i) Satisfaction
of the conditions to such transfer as set forth in the Servicing Agreement
including, without limitation, receipt of written consent of any NIMS Insurer
and 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;
(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 Servicer under the Servicing
Agreement;
(v) There
must be delivered to the Trustee, the Master Servicer and any NIMS Insurer
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; and
193
(vi) The
Seller shall, at its cost and expense, take such steps, or cause the terminated
Servicer to take such steps, as may be necessary or appropriate to effectuate
and evidence the transfer of the servicing of the Mortgage Loans to such
successor 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
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 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 servicer, 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 servicer, continue to
forward
to such successor 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 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 servicer, continue
to
cooperate with the successor servicer to facilitate such transfer in such
manner
and to such extent as the successor 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.
194
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
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:
/s/ Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Vice President
AURORA
LOAN SERVICES LLC, as Master Servicer
By:
/s/ Xxxxxxx Xxxx
Name:
Xxxxxxx Xxxx
Title:
Vice President
XXXXX
FARGO BANK, N.A., as Securities Administrator
By:
/s/ Xxxxxxx Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Vice President
XXXXXXX
FIXED INCOME SERVICES INC., as
Credit
Risk Manager
By:
/s/ Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
President and General Counsel
Solely
for purposes of Sections 5.07(b), 6.11 and 11.15,
accepted
and agreed to by:
XXXXXX
BROTHERS HOLDINGS INC.
By:
/s/ Xxxxxxx X. Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Authorized Signatory
EXHIBIT
A
FORMS
OF
CERTIFICATES
X-0
XXXXXXX
X-0
FORM
OF
INITIAL CERTIFICATION
Date
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICER]
|
Re:
|
Trust
Agreement dated as of August 1, 2007 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank
National
Association, as Trustee, Aurora Loan Services LLC, as Master
Servicer,
Xxxxx Fargo Bank, N.A., as Securities Administrator, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager, with respect to
Structured
Asset Securities Corporation Mortgage Loan Trust 2007-WF2 Mortgage
Pass-Through Certificates,
Series 2007-WF2
|
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
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICER]
|
Re:
|
Trust
Agreement dated as of August 1, 2007 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank
National
Association, as Trustee, Aurora Loan Services LLC, as Master
Servicer,
Xxxxx Fargo Bank, N.A., as Securities Administrator, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager, with respect to
Structured
Asset Securities Corporation Mortgage Loan Trust 2007-WF2 Mortgage
Pass-Through Certificates,
Series 2007-WF2
|
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 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
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICER]
|
Re:
|
Trust
Agreement dated as of August 1, 2007 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank
National
Association, as Trustee, Aurora Loan Services LLC, as Master
Servicer,
Xxxxx Fargo Bank, N.A., as Securities Administrator, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager, with respect to
Structured
Asset Securities Corporation Mortgage Loan Trust 2007-WF2 Mortgage
Pass-Through Certificates,
Series 2007-WF2
|
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 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 definition of 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 U.S. Bank National Association, as trustee (the “Trustee”) under
the Trust Agreement dated as of August 1, 2007 by and among Structured
Asset
Securities Corporation, as Depositor, the Trustee, Aurora Loan Services
LLC, as
Master Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator, and
Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, relating to
Structured Asset Securities Corporation Mortgage Loan Trust 2007-WF2 Mortgage
Pass-Through Certificates, Series 2007-WF2, 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, the Custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Trust Agreement dated as of August 1, 2007 by and among Structured
Asset Securities Corporation, as Depositor, you, as Trustee, Aurora Loan
Services LLC, as Master Servicer, Xxxxx Fargo Bank, N.A., as Securities
Administrator, and Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager
(the “Trust Agreement”), the undersigned [Servicer] [Master 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] [Master 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] [Master Servicer] hereby certifies that
the
Purchase Price or the FPD Purchase Price (in the case of a First Payment
Default
Mortgage Loan) has been credited to the Certificate Account or Collection
Account, as applicable, pursuant to the Trust Agreement.)
5. Other.
(Describe)
C-1
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).
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
(“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 Residual Certificate has been the subject
of an
ERISA-Qualifying Underwriting, is an insurance company that is
purchasing
the Residual 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
Residual 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, the Servicer, the Securities Administrator,
the
Depositor and any NIMS Insurer 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
Depositor, the Master Servicer, the Servicer, the Securities
Administrator
or any NIMS Insurer 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-1-1
|
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, U.S. Bank National Association, as
Trustee,
Aurora Loan Services LLC, as Master Servicer, Xxxxx Fargo Bank,
N.A., as
Securities Administrator, and Xxxxxxx Fixed Income Services Inc.,
as
Credit Risk Manager, dated as of August 1, 2007, no transfer
of the
Residual Certificate 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 August 20, 1996 that are treated as United
States
persons prior to such date and elect to continue to be treated
as United
States persons.
|
D-1-2
|
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 Securities Administrator
as its agent to act as “tax matters person” of the Trust Fund pursuant to
the Trust Agreement.
|
D-1-3
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its [title
of
officer] this _____ day of __________, 20__.
_________________________________
[Name
of
Purchaser]
By:______________________________
Name:
Title:
Personally
appeared before me the above-named [name of officer] ________________,
known or
proved to me to be the same person who executed the foregoing instrument
and to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and
the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________, 20__.
NOTARY
PUBLIC
______________________________
COUNTY
OF_____________________
STATE
OF______________________
My
commission expires the _____ day of __________, 20__.
X-0-0
XXXXXXX
X-0
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
____________________________
Date
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan Trust Mortgage
Pass-Through
Certificates, Series 2007-WF2
|
_______________________
(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
NAME
OF
SERVICING AGREEMENT
|
1.
|
The
Reconstituted Servicing Agreement dated as of August 1, 2007,
among the
Seller and the Servicer and acknowledged by the Master Servicer
and the
Trustee.
|
E-1
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan Trust
2007-WF2
|
|
Mortgage
Pass-Through Certificates, Series
2007-WF2
|
Reference
is hereby made to the Trust Agreement dated as of August 1, 2007 (the “Trust
Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
U.S. Bank National Association, as Trustee, Aurora Loan Services LLC, as
Master
Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager. 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 Placement Agent and the Depositor.
_____________________________________
[Name
of
Transferor]
By:__________________________________
Name:
Title:
Dated:
___________, ____
F-1
EXHIBIT
G
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTORS
Date
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount
of
Structured Asset Securities Corporation Mortgage Loan Trust 2007-WF2 Mortgage
Pass-Through Certificates, Series 2007-WF2, Class ____ Certificates (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 (which includes the
Placement
Agent) 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 August 1, 2007
by and among
the Depositor, Aurora Loan Services LLC, as Master Servicer,
U.S. Bank
National Association, as Trustee (the “Trustee”), Xxxxx Fargo Bank, N.A.,
as Securities Administrator, and Xxxxxxx Fixed Income Services
Inc., as
Credit Risk Manager, 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.
|
G-1
|
(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.
|
|
(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.
G-2
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:
G-3
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 to acquire a 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, the Servicer, the Securities Administrator,
the Depositor and any NIMS Insurer 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 Depositor, the Master Servicer,
the Servicer, the Securities Administrator or any NIMS Insurer 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.
3. In
the
case of an ERISA-Restricted Trust Certificate, prior to the termination
of the
Swap Agreement and the Interest Rate Cap Agreement 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 Trust 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.
H-1
4. The
Investor hereby acknowledges that under the terms of the Trust Agreement
(the
“Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
U.S. Bank National Association, as Trustee, Aurora Loan Services LLC, as
Master
Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager, dated as of August 1, 2007,
no
transfer of the ERISA-Restricted Certificates or the ERISA-Restricted Trust
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-2
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed
on its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________, 20___.
_________________________________
[Investor]
By:______________________________
Name:
Title:
ATTEST:
_____________________________
|
STATE
OF
|
)
|
|
)
ss:
|
|
|
COUNTY
OF
|
)
|
Personally
appeared before me the above-named ________________, known or proved to
me to be
the same person who executed the foregoing instrument and to be the
____________________ of the Investor, and acknowledged that he executed
the same
as his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of _________ 20___.
______________________________
NOTARY
PUBLIC
My
commission expires the
_____
day
of __________, 20___.
H-3
EXHIBIT
I
[Reserved]
I-1
EXHIBIT
J
[Reserved]
J-1
EXHIBIT
K
NAME
OF
CUSTODIAL AGREEMENT
|
1.
|
Custodial
Agreement dated as of August 1, 2007 between Xxxxx Fargo Bank,
N.A., as
Custodian, and U.S. Bank National Association, as
Trustee.
|
K-1
EXHIBIT
L
NAME
OF
CREDIT RISK MANAGEMENT AGREEMENT
|
1.
|
The
Credit Risk Management Agreement dated August 30, 2007 between
Xxxxxxx
Fixed Income Services Inc. and Xxxxx Fargo Bank,
N.A.
|
X-0
XXXXXXX
X-0
FORM
OF
TRANSFER CERTIFICATE
FOR
TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(B)
of the
Agreement)
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan Trust
2007-WF2
|
|
Mortgage
Pass-Through Certificates, Series
2007-WF2
|
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master
Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, U.S.
Bank
National Association, as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator, dated as of August 1, 2007. Capitalized terms used but not
defined herein shall have the meanings given to them in the
Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Restricted
Global
Security with DTC in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions
set
forth in the Agreement and the Securities and in accordance with Rule 904
of
Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United
States
or the Transferor and any person acting on its behalf reasonably believed
that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended;
and
e.
the
transferee is not a U.S. person (as defined in Regulation S).
M-1-1
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or
legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation
S.
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
X-0-0
XXXXXXX
X-0
FORM
OF
TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY
TO
RESTRICTED GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(C)
of
the
Agreement)
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan Trust
2007-WF2
|
|
Mortgage
Pass-Through Certificates, Series
2007-WF2
|
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master
Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, U.S.
Bank
National Association, as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator, dated as of August 1, 2007. Capitalized terms used but not
defined herein shall have the meanings given to them in the
Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Regulations
S
Global Security in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Agreement and the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any
such
account is a qualified institutional buyer within the meaning of 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
jurisdiction.
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
M-2-1
EXHIBIT
N
INTEREST
RATE CAP AGREEMENT
N-1
EXHIBIT
O
SWAP
AGREEMENT
X-0
XXXXXXX
X-0
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the Distribution Date Statement
|
Servicer(1)
Master
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders,
including any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian(2)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer(1)
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
Depositor
|
P-1-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
P-1-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
_______________________
(1) This
information to be provided pursuant to the Servicing Agreement.
(2) This
information to be provided pursuant to the Custodial Agreement.
X-0-0
XXXXXXX
X-0
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Regulation
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Regulation
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Regulation
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
P-2-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Regulation
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders,
including any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian(1)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer(2)
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Regulation
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand,
and (b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
P-2-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any specific relationships involving the transaction
or the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing
Entity on
the one hand, and (b) any of the following parties (or their
affiliates)
on the other hand, that exist currently or within the past two
years and
that are material:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
(1) This
information to be provided pursuant to the Custodial Agreement.
(2) This
information to be provided pursuant to the Servicing Agreement.
X-0-0
XXXXXXX
X-0
|
ADDITIONAL
FORM 8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is
not a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are
fully
disclosed in the prospectus
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement
that is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer(1)
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the
time of the
report
|
Servicer(1)
|
|
▪
Other material servicers
|
Servicer(1)
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian(2)
|
P-3-1
|
ADDITIONAL
FORM 8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct
Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to the Certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Trust Agreement.
|
Securities
Administrator
Trustee
(with respect to each, only to the extent it is a party to any
such
documents)
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer(1)/Trustee
(as to itself)
|
|
Regulation
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer(1)/Master
Servicer/Depositor
|
|
Regulation
AB disclosure about any new Trustee is also required.
|
New
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as
derivatives.
|
Depositor/Securities
Administrator/Trustee
|
P-3-2
|
ADDITIONAL
FORM 8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Regulation
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
Trustee
(so long as the Trustee is the Paying Agent)
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the
time of
issuance of the securities from the description in the final
prospectus,
provide updated Regulation AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Regulation FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
Certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
(1) This
information to be provided pursuant to the Servicing Agreement.
(2) This
information to be provided pursuant to the Custodial Agreement.
X-0-0
XXXXXXX
X-0
ADDITIONAL
DISCLOSURE NOTIFICATION
Xxxxx
Fargo Bank, N.A., as Securities Administrator
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Corporate Trust Services - SASCO 2007-WF2 - SEC Report Processing
RE:
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Trust Agreement, dated as of August
1, 2007,
by and among Structured Asset Securities Corporation, as Depositor, Xxxxx
Fargo
Bank, N.A., as Securities Administrator, Aurora Loan Services LLC, as Master
Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, and
U.S.
Bank National Association, as Trustee, the undersigned, as [ ], hereby
notifies
you that certain events have come to our attention that [will] [may] need
to be
disclosed on Form [10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
List
of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
P-4-1
Any
inquiries related to this notification should be directed to [ ], phone
number: [ ]; email address:
[ ].
[NAME
OF
PARTY],
as
[role]
By:
Name:
Title:
|
cc:
|
U.S.
Bank National Association
|
|
Xxx
Xxxxxxx Xxxxxx, 0xx
Xxxxx
|
|
Xxxxxx,
Xxxxxxxxxxxxx 00000
|
|
Structured
Asset Securities Corporation
|
|
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
P-4-2
EXHIBIT
Q-1
FORM
OF
BACK-UP XXXXXXXX-XXXXX CERTIFICATION
[ ]
[ ]
[ ]
|
Re:
|
Structure
Asset Securities Corporation Mortgage Loan Trust 2007-WF2
Mortgage
Pass-Through Certificates,
Series 2007-WF2
|
[_______],
the [_______] of [_______] (the “Company”) hereby certifies to the Depositor,
the Master Servicer, the Securities Administrator, the Credit Risk Manager
and
the Trustee, and each of their officers, directors and affiliates
that:
(1) I
have
reviewed [the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),] the
report on assessment of the Company’s compliance with the Servicing Criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act
of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that were
delivered
by the Company to any of the Depositor, the Master Servicer and the Securities
Administrator pursuant to the Agreement (collectively, the “Company Servicing
Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Depositor,
the
Master Servicer and the Securities Administrator;
(4) I
am
responsible for reviewing the activities performed by [_______] as [_______]
under the [_______] (the “Agreement”), and based on my knowledge [and the
compliance review conducted in preparing the Compliance Statement] and
except as
disclosed in [the Compliance Statement,] the Servicing Assessment or the
Attestation Report, the Company has fulfilled its obligations under the
Agreement in all material respects; and
Q-1-1
(5) [The
Compliance Statement required to be delivered by the Company pursuant to
the
Agreement, and] [The] [the] Servicing Assessment and Attestation Report
required
to be provided by the Company and [by any Subservicer or Subcontractor]
pursuant
to the Agreement, have been provided to the Depositor, the Master Servicer
and
the Securities Administrator. Any material instances of noncompliance described
in such reports have been disclosed to the Depositor, the Master Servicer
and
the Securities Administrator. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in
the
Trust Agreement, dated as of August 1, 2007 (the “Trust Agreement”) by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank National
Association, as Trustee, Aurora Loan Services LLC, as Master Servicer,
Xxxxxxx
Fixed Income Services Inc., as Credit Risk Manager, and Xxxxx Fargo Bank,
N.A.,
as Securities Administrator. Capitalized terms used but not defined herein
shall
have the meanings given to them in the Trust Agreement.
[_______]
as
[_______]
By:
Name:
Title:
Date:
Q-1-2
EXHIBIT
Q-2
FORM
OF
BACK-UP XXXXXXXX-XXXXX CERTIFICATION
TO
BE
PROVIDED BY THE SECURITIES ADMINISTRATOR
|
Re:
|
Structured
Asset Securities Corporation Mortgage Loan Trust 2007-WF2 (the
“Trust”)
Mortgage Pass-Through Certificates, Series 2007-WF2, issued pursuant
to
the Trust Agreement, dated as of August 1, 2007, among Structured
Asset
Securities Corporation, as Depositor, Aurora Loan Services, LLC,
as Master
Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator,
Xxxxxxx
Fixed Income Services Inc., as Credit Risk Manager,and
U.S. Bank National Association, as
Trustee
|
The
Securities Administrator hereby certifies to the Depositor and the Master
Servicer, and their respective officers, directors and affiliates, and
with the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have
reviewed the annual report on Form 10-K for the fiscal year [____] (the
“Annual
Report”), and all reports on Form 10-D required to be filed in respect of period
covered by the Annual Report (collectively with the Annual Report, the
“Reports”), of the Trust;
(2) To
my
knowledge, (a) the Reports, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by the Annual
Report, and (b) the Securities Administrator’s assessment of compliance and
related attestation report referred to below, taken as a whole, do not
contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
such assessment of compliance and attestation report;
(3) To
my
knowledge, the distribution information required to be provided by the
Securities Administrator under the Trust Agreement for inclusion in the
Reports
is included in the Reports;
(4) I
am
responsible for reviewing the activities performed by the Securities
Administrator under the Trust Agreement, and based on my knowledge and
the
compliance review conducted in preparing the assessment of compliance of
the
Securities Administrator required by the Trust Agreement, and except as
disclosed in the Reports, the Securities Administrator has fulfilled its
obligations under the Trust Agreement in all material respects; and
(5) The
report on assessment of compliance with servicing criteria applicable to
the
Securities Administrator for asset-backed securities of the Securities
Administrator and each Subcontractor utilized by the Securities Administrator
and related attestation report on assessment of compliance with servicing
criteria applicable to it required to be included in the Annual Report
in
accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18
and
15d-18 has been included as an exhibit to the Annual Report. Any material
instances of non-compliance are described in such report and have been
disclosed
in the Annual Report.
Q-2-1
In
giving
the certifications above, the Securities Administrator has reasonably relied
on
information provided to it by the following unaffiliated parties: [names
of
servicer(s), master servicer, subservicer(s), depositor, trustee,
custodian(s)]
Date:
XXXXX
FARGO BANK, N.A.,
solely
in
its capacity as Securities Administrator
[Signature]
[Title]
Q-2-2
EXHIBIT
Q-3
FORM
OF
BACK-UP XXXXXXXX-XXXXX CERTIFICATION TO BE PROVIDED BY [THE TRUSTEE AND
THE
PAYING AGENT]
Re:
Structured
Asset Securities Corporation Mortgage Loan Trust 2007-WF2 (the “Trust”),
Mortgage Pass-Through Certificates, Series 2007-WF2, issued pursuant to
the
Trust Agreement (the “Agreement”), dated as of August 1, 2007, among Structured
Asset Securities Corporation, as Depositor, Aurora Loan
Services, LLC, as Master Servicer, Xxxxx Fargo Bank, N.A. as Securities
Administrator, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager
and
U.S. Bank National Association, as Trustee
U.S.
Bank
National Association, solely in its capacity as [Trustee and Paying Agent]
under
the Agreement, hereby certifies to the Depositor and the Master Servicer,
and
their respective officers, directors and affiliates, and with the knowledge
and
intent that they will rely upon this certification, that:
(1) The
report on assessment of compliance with servicing criteria applicable to
the
[Trustee and Paying Agent] for asset-backed securities of the [Trustee
and
Paying Agent] and its related attestation report on assessment of compliance
with servicing criteria applicable to it for inclusion in the Trust’s annual
report on Form 10-K for the fiscal year [ ] in accordance with Item 1122
of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been delivered
to the
Securities Administrator, Depositor [and the Master Servicer] pursuant
to
Section 6.20 of the Trust Agreement. Any material instances of non-compliance
by
the [Trustee and Paying Agent] with the applicable servicing criteria are
described in such report.
(2) The
assessment of compliance and related attestation reported referred to above,
taken as a whole, do not contain any untrue statement of a material fact
or omit
to state a material fact necessary to make the statements made, in light
of the
circumstances under which such statements were made, not misleading with
respect
to the period covered by such assessment of compliance and attestation
report;
and
(3) Any
information required to be delivered pursuant to Section 3.08(b) of the
Agreement has been provided to the Sponsor, the Depositor, the Master Servicer
and the Securities Administrator.
[In
giving the certifications above, the [Trustee and Paying Agent] [has/have]
reasonably relied on the accuracy and completeness of the information provided
to it by the following unaffiliated parties: [names of servicer(s), master
servicer, subservicer(s), depositor, trustee, custodian(s)].]
Q-3-1
U.S.
Bank National Association, as [Trustee and Paying Agent]
________________________________
[Signature]
[Title]
Date:
___________________________
Q-3-2
EXHIBIT
R-1
WATCHLIST
REPORT
X-0-0
XXXXXXX
X-0
FORM
OF
LOSS SEVERITY REPORT
X-0-0
XXXXXXX
X-0
FORM
OF
MORTGAGE INSURANCE CLAIMS REPORT
X-0-0
XXXXXXX
X-0
FORM
OF
PREPAYMENT PREMIUMS REPORT
X-0-0
XXXXXXX
X-0
FORM
OF
ANALYTICS REPORT
R-5-1
EXHIBIT
S
SERVICING
CRITERIA TO BE ADDRESSED IN
REPORT
ON
ASSESSMENT OF COMPLIANCE
TO: [ ]
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 August 1,
2007 (the
“Agreement”), by and among Structured Asset Securities Corporation, as
Depositor, U.S. Bank National Association, as Trustee, Aurora Loan Services
LLC,
as Master Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator,
and
Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager.
If
the
Trustee and the Paying Agent are the same party, the servicing criteria
of the
Paying Agent listed below will be included in the Trustee’s
report.
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
(not including any capacity as Paying Agent)
|
Master
Servicer
|
Securities
Administrator
|
|
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.
|
|||||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
|
|
|
|
||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
S-1
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
(not including any capacity as Paying
Agent)
|
Master
Servicer
|
Securities
Administrator
|
|
Cash Collection and Administration
|
||||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in
the
transaction agreements.
|
X
|
X
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction agreements.
|
X
|
||||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
X
|
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
|
|
|||
|
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
|
S-2
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
(if
it is Paying Agent)
|
Master
Servicer
|
Securities
Administrator
|
|
Investor
Remittances and Reporting
|
||||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of pool assets serviced by the Servicer.
|
X
|
X
|
X
|
||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
S-3
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
(if
it is Paying Agent)
|
Master
Servicer
|
Securities
Administrator
|
|
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 pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
|
||||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
|
||||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
X
|
|||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
|||||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
|||||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
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
|
S-4
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
(if
it is Paying Agent)
|
Master
Servicer
|
Securities
Administrator
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or unemployment).
|
|||||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
|||||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
|||||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
S-5
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
(if
it is Paying Agent)
|
Master
Servicer
|
Securities
Administrator
|
|
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
|
S-6
EXHIBIT
T
FORM
OF
MODIFIED LOAN REPORT
|
Loan
Number
|
Modification
Effective Date
|
UPB
Prior to Modification
|
UPB
Post Modification
|
Interest
Rate Prior to Modification
|
Modified
Interest Rate
|
Scheduled
P&I Payment Prior to Modification
|
Modified
Scheduled P&I Payment
|
Maturity
Date Prior to Modification
|
Modified
Maturity Date
|
T-1
EXHIBIT
U
FORM
OF
CERTIFICATION
TO
BE
PROVIDED BY THE CREDIT RISK MANAGER
FORM
OF
CERTIFICATION
Re:
Structured Asset Securities Corporation Mortgage Loan Trust 2007-WF2 Mortgage
Pass-Through Certificates, Series 2007-WF2 issued pursuant to the Trust
Agreement dated as of August 1, 2007, among Structured Asset Securities
Corporation, as Depositor (the “Depositor”), Aurora Loan Services LLC, as Master
Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, U.S.
Bank
National Association, as Trustee (the “Trustee”),
and Xxxxx Fargo Bank,
N.A., as Securities Administrator.
XXXXXXX
FIXED INCOME SERVICES INC. (the “Credit Risk Manager”) certifies to the
Depositor, the Sponsor, the Master Servicer, the Securities Administrator
and
[10-K Signatory Entity], its officers, directors and affiliates, and with
the
knowledge and intent that they will rely upon this certification,
that:
|
1.
|
Based
on the knowledge of the Credit Risk Manager, taken as a whole,
the
information in the reports provided during the calendar year
immediately
preceding the date of this certificate (the “Relevant Year”) by the Credit
Risk Manager pursuant to the Master Consulting Agreement dated
as of
January 28, 2004 (the
“Master Consulting Agreement”), by and between the Credit Risk Manager and
Xxxxxx Brothers Holdings Inc. and pursuant to Transaction Addendum
SASCO
2007-WF2 (the “Transaction Addendum SASCO 2007-WF2”), does not contain any
untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances
under
which such statements were made, not misleading as of the date
that each
of such reports was provided; and
|
|
2.
|
The
Credit Risk Manager has fulfilled its obligations under the Master
Consulting Agreement and Transaction Addendum SASCO 2007-WF2
throughout
the Relevant Year.
|
XXXXXXX
FIXED INCOME SERVICES INC.
By:
Name:
Title:
U-1
EXHIBIT
V
TRANSACTION
PARTIES
Sponsor
and Seller: Xxxxxx Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
U.S. Bank National Association
Securities
Administrator: Xxxxx Fargo Bank, N.A.
Master
Servicer: Aurora Loan Services LLC
Credit
Risk Manager: Xxxxxxx Fixed Income Services Inc.
Swap
Counterparty: Credit Suisse International
Cap
Counterparty: Credit Suisse International
Servicer(s):
Xxxxx Fargo Bank, N.A.
Originator(s):
Xxxxx Fargo Bank, N.A.
Custodian(s):
Xxxxx Fargo Bank, N.A.
Paying
Agent: U.S. Bank National Association
V-1
EXHIBIT
W
[Reserved]
W-1
EXHIBIT
X
[Reserved]
X-1
EXHIBIT
Y
FORM
OF
CALL OPTION NOTICE
[Date]
[___________]
[___________]
[___________]
Attention:
[___________]
|
Re:
|
CALL
OPTION NOTICE
|
| Trust Agreement relating to the Structured Asset Securities Corporation Mortgage Loan Trust 2007-WF2 Mortgage Pass-Through Certificates, Series 2007-WF2, dated as of August 1, 2007, among Structured Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, Xxxxx Fargo Bank, N.A., as Securities Administrator, and U.S. Bank National Association, as Trustee |
Ladies
and Gentlemen:
In
accordance with Section 7.01(d)(i) of the above-referenced Trust Agreement,
Aurora Loan Services LLC, as Master Servicer, hereby notifies you that
the
option to purchase the Mortgage Loans and certain other property of the
Trust
Fund may be exercised on the Distribution Date of this month. The Bid Due
Date
for this month is [_____] [__], 20[__].
[In
accordance with Section 7.01(d)(vii) of the Trust Agreement, if no Call
Option
Holder submits a Purchaser Call Option Notice on or before such Bid Due
Date,
then, on the immediately succeeding Distribution Date, the Master Servicer
may
exercise the option to purchase the Mortgage Loans and certain other property
of
the Trust Fund pursuant to Section 7.01(b) or Section 7.01(c) of the Trust
Agreement.]
Capitalized
terms used and not defined herein are used as defined in the Trust
Agreement.
Very
truly yours,
Aurora
Loan Services LLC
By:
___________________________
Name:
_________________________
Title:
__________________________
Y-1
EXHIBIT
Z
FORM
OF
PURCHASER CALL OPTION NOTICE
[Date]
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attn:
SASCO 2007-WF2
|
Re:
|
PURCHASER
CALL OPTION NOTICE
|
|
Trust
Agreement relating to the Structured Asset Securities Corporation
Mortgage
Loan Trust 2007-WF2 Mortgage Pass-Through Certificates, Series
2007-WF2,
dated as of August 1, 2007, among Structured Asset Securities
Corporation,
as Depositor, Aurora Loan Services LLC, as Master Servicer, Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager, Xxxxx Fargo Bank,
N.A., as
Securities Administrator,
and U.S. Bank National Association, as
Trustee
|
Ladies
and Gentlemen:
In
accordance with Section 7.01(d)(iii) of the above-referenced Trust Agreement,
[NIM Residual Securities holder][Class X Certificateholder] hereby requests
Aurora Loan Services LLC (the “Master Servicer”) to exercise the option to
purchase on its behalf with respect to all, but no fewer than all, of the
Mortgage Loans and other property of the Trust Fund relating to the Structured
Asset Securities Corporation Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2007-WF2.
The
Bid
Price for such assets shall be $___________.
Capitalized
terms used and not defined herein are used as defined in the Trust
Agreement.
Very
truly yours,
[CALL
OPTION HOLDER]
By:
___________________________
Name:
_________________________
Title:
__________________________
Z-1
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “SASCO 2007-WF2 Mortgage Loan
Schedule” at XxXxx Xxxxxx LLP]
Sched.
A-1
SCHEDULE
B
FIRST
PAYMENT DEFAULT MORTGAGE LOANS
[To
be
retained in a separate closing binder entitled “SASCO 2007-WF2 First Payment
Default Mortgage Loans” at XxXxx Xxxxxx LLP]
Sched.
B-1
