FINANCIAL ASSET SECURITIES CORP., Depositor OCWEN LOAN SERVICING, LLC., Servicer WELLS FARGO BANK, N.A., Master Servicer and Trust Administrator DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee POOLING AND SERVICING AGREEMENT Dated as of February 1, 2007...
FINANCIAL
ASSET SECURITIES CORP.,
Depositor
OCWEN
LOAN SERVICING, LLC.,
Servicer
XXXXX
FARGO BANK, N.A.,
Master
Servicer and Trust Administrator
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
Dated
as
of February 1, 2007
___________________________
Asset-Backed
Certificates, Series 2007-1
Table
of Contents
|
ARTICLE
I
DEFINITIONS
|
|
|
SECTION
1.01
|
Defined
Terms.
|
|
SECTION
1.02
|
Accounting.
|
|
SECTION
1.03
|
Allocation
of Certain Interest Shortfalls.
|
|
SECTION
1.04
|
Rights
of the NIMS Insurer.
|
|
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
|
|
SECTION
2.01
|
Conveyance
of Mortgage Loans.
|
|
SECTION
2.02
|
Acceptance
by Trustee.
|
|
SECTION
2.03
|
Repurchase
or Substitution of Mortgage Loans by an Originator or the
Seller.
|
|
SECTION
2.04
|
[Reserved].
|
|
SECTION
2.05
|
Representations,
Warranties and Covenants of Ocwen and the Master
Servicer.
|
|
SECTION
2.06
|
Representations
and Warranties of the Depositor.
|
|
SECTION
2.07
|
Issuance
of Certificates.
|
|
SECTION
2.08
|
Authorization
to Enter into Basis Risk Cap Agreement, Interest Rate Cap Agreement
and
Interest Rate Swap Agreement.
|
|
SECTION
2.09
|
Conveyance
of REMIC Regular Interests and Acceptance of REMIC 1, REMIC 2, REMIC
3,
REMIC 4, REMIC 5 and REMIC 6 by the Trustee; Issuance of
Certificates.
|
|
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
|
|
SECTION
3.01
|
Ocwen
to Act as a Servicer.
|
|
SECTION
3.02
|
Sub-Servicing
Agreements Between Ocwen and Sub-Servicers;
Subcontractors.
|
|
SECTION
3.03
|
Successor
Sub-Servicers.
|
|
SECTION
3.04
|
Liability
of Ocwen.
|
|
SECTION
3.05
|
No
Contractual Relationship Between Sub-Servicers and the Trustee, the
Trust
Administrator, the NIMS Insurer or Certificateholders.
|
|
SECTION
3.06
|
Assumption
or Termination of Sub-Servicing Agreements by Master
Servicer.
|
|
SECTION
3.07
|
Collection
of Certain Mortgage Loan Payments.
|
|
SECTION
3.08
|
Sub-Servicing
Accounts.
|
|
SECTION
3.09
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
|
SECTION
3.10
|
Collection
Account.
|
|
SECTION
3.11
|
Withdrawals
from the Collection Account.
|
|
SECTION
3.12
|
Investment
of Funds in the Collection Account.
|
|
SECTION
3.13
|
[Reserved].
|
|
SECTION
3.14
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
|
SECTION
3.15
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
|
SECTION
3.16
|
Realization
Upon Defaulted Mortgage Loans.
|
|
SECTION
3.17
|
Trustee
to Cooperate; Release of Mortgage Files.
|
|
SECTION
3.18
|
Servicing
Compensation.
|
|
SECTION
3.19
|
Reports;
Collection Account Statements.
|
|
SECTION
3.20
|
Statement
as to Compliance.
|
|
SECTION
3.21
|
Assessments
of Compliance and Attestation Reports.
|
|
SECTION
3.22
|
Access
to Certain Documentation.
|
|
SECTION
3.23
|
Title,
Management and Disposition of REO Property.
|
|
SECTION
3.24
|
Obligations
of Ocwen in Respect of Prepayment Interest Shortfalls.
|
|
SECTION
3.25
|
Obligations
of Ocwen in Respect of Monthly Payments.
|
|
SECTION
3.26
|
[Reserved].
|
|
SECTION
3.27
|
[Reserved].
|
|
SECTION
3.28
|
Late
Remittance.
|
|
SECTION
3.29
|
Advance
Facility.
|
|
SECTION
3.30
|
Solicitations.
|
|
ARTICLE
IIIA
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
|
|
SECTION
3A.01
|
Master
Servicer to Act as Master Servicer.
|
|
SECTION
3A.02
|
[Reserved].
|
|
SECTION
3A.03
|
Monitoring
of Servicers.
|
|
SECTION
3A.04
|
Fidelity
Bond.
|
|
SECTION
3A.05
|
Power
to Act; Procedures.
|
|
SECTION
3A.06
|
Due
on Sale Clauses; Assumption Agreements.
|
|
SECTION
3A.07
|
[Reserved].
|
|
SECTION
3A.08
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
|
SECTION
3A.09
|
Compensation
for the Master Servicer.
|
|
SECTION
3A.10
|
Obligations
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3A.11
|
Distribution
Account.
|
|
SECTION
3A.12
|
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
|
ARTICLE
IV
FLOW
OF FUNDS
|
|
|
SECTION
4.01
|
Distributions.
|
|
SECTION
4.02
|
[Reserved].
|
|
SECTION
4.03
|
Statements.
|
|
SECTION
4.04
|
Remittance
Reports; Advances.
|
|
SECTION
4.05
|
Commission
Reporting.
|
|
SECTION
4.06
|
[Reserved].
|
|
SECTION
4.07
|
[Reserved].
|
|
SECTION
4.08
|
Distributions
on the REMIC Regular Interests.
|
|
SECTION
4.09
|
Allocation
of Realized Losses.
|
|
SECTION
4.10
|
Swap
Account.
|
|
SECTION
4.11
|
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
|
SECTION
4.12
|
Cap
Account.
|
|
SECTION
4.13
|
Net
WAC Rate Carryover Reserve Account.
|
|
SECTION
4.14
|
Collateral
Accounts
|
|
SECTION
4.15
|
Rights
and Obligations Under the Basis Risk Cap Agreement, the Interest
Rate Cap
Agreement and the Interest Rate Swap Agreement.
|
|
ARTICLE
V
THE
CERTIFICATES
|
|
|
SECTION
5.01
|
The
Certificates.
|
|
SECTION
5.02
|
Registration
of Transfer and Exchange of Certificates.
|
|
SECTION
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
SECTION
5.04
|
Persons
Deemed Owners.
|
|
SECTION
5.05
|
Appointment
of Paying Agent.
|
|
ARTICLE
VI
THE
MASTER SERVICER, OCWEN aND THE DEPOSITOR
|
|
|
SECTION
6.01
|
Liability
of the Master Servicer, Ocwen and the Depositor.
|
|
SECTION
6.02
|
Merger
or Consolidation of, or Assumption of the Obligations of Ocwen, the
Master
Servicer or the Depositor.
|
|
SECTION
6.03
|
Limitation
on Liability of Ocwen, the Master Servicer and Others.
|
|
SECTION
6.04
|
Limitation
on Resignation of Ocwen; Assignment of Master
Servicing.
|
|
SECTION
6.05
|
Successor
Master Servicer.
|
|
SECTION
6.06
|
Delegation
of Duties.
|
|
SECTION
6.07
|
[Reserved].
|
|
SECTION
6.08
|
Inspection.
|
|
SECTION
6.09
|
Duties
of the Credit Risk Manager.
|
|
SECTION
6.10
|
Limitation
Upon Liability of the Credit Risk Manager.
|
|
SECTION
6.11
|
Removal
of the Credit Risk Manager.
|
|
ARTICLE
VII
DEFAULT
|
|
|
SECTION
7.01
|
Master
Servicer Events of Termination and Servicer Events of
Termination.
|
|
SECTION
7.02
|
Master
Servicer or Trustee to Act; Appointment of Successor
Servicer.
|
|
SECTION
7.03
|
Trustee
to Act; Appointment of Successor Master Servicer.
|
|
SECTION
7.04
|
Waiver
of Defaults.
|
|
SECTION
7.05
|
Notification
to Certificateholders.
|
|
SECTION
7.06
|
Survivability
of Servicer and Master Servicer Liabilities.
|
|
ARTICLE
VIII
THE
TRUSTEE AND THE TRUST ADMINISTRATOR
|
|
|
SECTION
8.01
|
Duties
of Trustee and Trust Administrator.
|
|
SECTION
8.02
|
Certain
Matters Affecting the Trustee and the Trust
Administrator.
|
|
SECTION
8.03
|
Trustee
and Trust Administrator Not Liable for Certificates or Mortgage
Loans.
|
|
SECTION
8.04
|
Trustee
and Trust Administrator May Own Certificates.
|
|
SECTION
8.05
|
Trust
Administrator and Trustee Compensation and Expenses.
|
|
SECTION
8.06
|
Eligibility
Requirements for Trustee and Trust Administrator.
|
|
SECTION
8.07
|
Resignation
or Removal of Trustee or Trust Administrator.
|
|
SECTION
8.08
|
Successor
Trustee.
|
|
SECTION
8.09
|
Merger
or Consolidation of Trustee or Trust Administrator.
|
|
SECTION
8.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
SECTION
8.11
|
Limitation
of Liability.
|
|
SECTION
8.12
|
Trustee
May Enforce Claims Without Possession of Certificates.
|
|
SECTION
8.13
|
Suits
for Enforcement.
|
|
SECTION
8.14
|
Waiver
of Bond Requirement.
|
|
SECTION
8.15
|
Waiver
of Inventory, Accounting and Appraisal Requirement.
|
|
SECTION
8.16
|
Appointment
of the Custodians.
|
|
ARTICLE
IX
REMIC
ADMINISTRATION
|
|
|
SECTION
9.01
|
REMIC
Administration.
|
|
SECTION
9.02
|
Prohibited
Transactions and Activities.
|
|
SECTION
9.03
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
|
ARTICLE
X
TERMINATION
|
|
|
SECTION
10.01
|
Termination.
|
|
SECTION
10.02
|
Additional
Termination Requirements.
|
|
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
|
|
SECTION
11.01
|
Amendment.
|
|
SECTION
11.02
|
Recordation
of Agreement; Counterparts.
|
|
SECTION
11.03
|
Limitation
on Rights of Certificateholders.
|
|
SECTION
11.04
|
Governing
Law; Jurisdiction.
|
|
SECTION
11.05
|
Notices.
|
|
SECTION
11.06
|
Severability
of Provisions.
|
|
SECTION
11.07
|
Article
and Section References.
|
|
SECTION
11.08
|
Notice
to the Rating Agencies.
|
|
SECTION
11.09
|
Further
Assurances.
|
|
SECTION
11.10
|
Benefits
of Agreement.
|
|
SECTION
11.11
|
Acts
of Certificateholders.
|
|
SECTION
11.12
|
Intention
of the Parties and Interpretation.
|
|
Exhibits:
|
|
|
Exhibit
A-1
|
Form
of Class I-A-1 Certificates
|
|
Exhibit
A-2
|
Form
of Class II-A-1 Certificates
|
|
Exhibit
A-3
|
Form
of Class II-A-2 Certificates
|
|
Exhibit
A-4
|
Form
of Class II-A-3 Certificates
|
|
Exhibit
A-5
|
Form
of Class II-A-4 Certificates
|
|
Exhibit
A-6
|
Form
of Class M-1 Certificates
|
|
Exhibit
A-7
|
Form
of Class M-2 Certificates
|
|
Exhibit
A-8
|
Form
of Class M-3 Certificates
|
|
Exhibit
A-9
|
Form
of Class M-4 Certificates
|
|
Exhibit
A-10
|
Form
of Class M-5 Certificates
|
|
Exhibit
A-11
|
Form
of Class M-6 Certificates
|
|
Exhibit
A-12
|
Form
of Class M-7 Certificates
|
|
Exhibit
A-13
|
Form
of Class M-8A Certificates
|
|
Exhibit
A-14
|
Form
of Class M-8B Certificates
|
|
Exhibit
A-15
|
Form
of Class M-9 Certificates
|
|
Exhibit
A-16
|
Form
of Class M-10 Certificates
|
|
Exhibit
A-17
|
Form
of Class C Certificates
|
|
Exhibit
A-18
|
Form
of Class P Certificates
|
|
Exhibit
A-19
|
Form
of Class R Certificates
|
|
Exhibit
A-20
|
Form
of Class R-X Certificates
|
|
Exhibit
A-21
|
Form
of Class X Certificates
|
|
Exhibit
A-22
|
Form
of Class FL Certificates
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C-1
|
Form
of Mortgage Loan Purchase Agreement
|
|
Exhibit
C-2
|
Form
of Assignment and Recognition Agreement
|
|
Exhibit
C-3
|
Form
of Omnibus Assignment Agreement
|
|
Exhibit
D
|
Mortgage
Loan Schedule
|
|
Exhibit
E
|
Request
for Release
|
|
Exhibit
F-1
|
Form
of Trustee’s Initial Certification
|
|
Exhibit
F-2
|
Form
of Trustee’s Final Certification
|
|
Exhibit
F-3
|
Form
of Receipt of Mortgage Note
|
|
Exhibit
G
|
Form
of Cap Allocation Agreement
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
|
Exhibit
I
|
Form
of Limited Power of Attorney
|
|
Exhibit
J
|
Form
of Investment Letter
|
|
Exhibit
K
|
Form
of Transfer Affidavit for Residual Certificates
|
|
Exhibit
L
|
Form
of Transferor Certificate
|
|
Exhibit
M
|
Form
of ERISA Representation Letter
|
|
Exhibit
N-1
|
Form
of Certification to be Provided by the Master Servicer with Form
10-K
|
|
Exhibit
N-2
|
Form
of Certification to be Provided to the Master Servicer by the
Trustee
|
|
Exhibit
N-3
|
Form
of Certification to be Provided to the Master Servicer by
Ocwen
|
|
Exhibit
O
|
Form
of Interest Rate Cap Agreement
|
|
Exhibit
P
|
Additional
Disclosure Notification
|
|
Exhibit
Q
|
Form
of Interest Rate Swap Agreement
|
|
Exhibit
R-1
|
Form
of Delinquency Report
|
|
Exhibit
R-2
|
Form
of Monthly Remittance Report
|
|
Exhibit
R-3
|
Form
of Realized Loss Report
|
|
Exhibit
S
|
Servicing
Criteria
|
|
Exhibit
T
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
U
|
Form
of Basis Risk Cap Agreement
|
|
Schedule
I
|
Prepayment
Charge Schedule
|
This
Pooling and Servicing Agreement is dated as of February 1, 2007 (the
“Agreement”), among FINANCIAL ASSET SECURITIES CORP., as depositor (the
“Depositor”), OCWEN LOAN SERVICING, LLC, as servicer (the “Servicer”), XXXXX
FARGO BANK, N.A., as master servicer and trust administrator (the “Master
Servicer” and “Trust Administrator”) and DEUTSCHE BANK NATIONAL TRUST COMPANY,
as trustee (the “Trustee”).
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of twenty-two classes
of
certificates, designated as (i) the Class I-A-1 Certificates, (ii) the Class
II-A-1 Certificates, (iii) the Class II-A-2 Certificates, (iv) the Class II-A-3
Certificates, (v) the Class II-A-4 Certificates, (vi) the Class M-1
Certificates, (vii) the Class M-2 Certificates, (viii) the Class M-3
Certificates, (ix) the Class M-4 Certificates, (x) the Class M-5 Certificates,
(xi) the Class M-6 Certificates, (xii) the Class M-7 Certificates, (xiii)
the
Class
M-8A Certificates,
(xiv)
the Class M-8B Certificates, (xv) the Class M-9 Certificates, (xvi) the Class
M-10 Certificates, (xvii) the Class C Certificates, (xviii) the Class P
Certificates, (xix) the Class R Certificates, (xx) the Class R-X Certificates
and (xxi) the Class X Certificates, (xxi) the Class X Certificates, (xxii)
the
Class FL Certificates.
REMIC
1
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the Mortgage Loans and certain other related assets subject to
this Agreement (exclusive of the Net WAC Rate Carryover Reserve Account, the
Basis Risk Cap Agreement, the Interest Rate Cap Agreement, the Cap Account,
the
Cap Allocation Agreement, any Servicer Prepayment Charge Payment Amounts, the
Swap Account, the Supplemental Interest Trust and the Interest Rate Swap
Agreement) as a REMIC for federal income tax purposes, and such segregated
pool
of assets shall be designated as “REMIC 1.” The Class R-1 Interest shall
represent the sole class of “residual interests” in REMIC 1 for purposes of the
REMIC Provisions (as defined herein). The following table irrevocably sets
forth
the designation, the Uncertificated REMIC 1 Pass-Through Rate, the initial
Uncertificated Principal Balance and, for purposes of satisfying Treasury
Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for
each of the REMIC 1 Regular Interests (as defined herein). None of the REMIC
1
Regular Interests shall be certificated.
|
Designation
|
Uncertificated
REMIC 1
Pass-Through
Rate
|
Initial
Uncertificated
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
||||
|
I
|
Variable
(2)
|
$
124,386,234.94
|
March
2037
|
||||
|
I-1-A
|
Variable
(2)
|
$
8,486,160.00
|
March
2037
|
||||
|
I-1-B
|
Variable
(2)
|
$
8,486,160.00
|
March
2037
|
||||
|
I-2-A
|
Variable
(2)
|
$
8,492,515.00
|
March
2037
|
||||
|
I-2-B
|
Variable
(2)
|
$
8,492,515.00
|
March
2037
|
||||
|
I-3-A
|
Variable
(2)
|
$
8,353,457.50
|
March
2037
|
||||
|
I-3-B
|
Variable
(2)
|
$
8,353,457.50
|
March
2037
|
||||
|
I-4-A
|
Variable
(2)
|
$
7,902,145.00
|
March
2037
|
||||
|
I-4-B
|
Variable
(2)
|
$
7,902,145.00
|
March
2037
|
||||
|
I-5-A
|
Variable
(2)
|
$
8,594,595.00
|
March
2037
|
||||
|
I-5-B
|
Variable
(2)
|
$
8,594,595.00
|
March
2037
|
||||
|
I-6-A
|
Variable
(2)
|
$
9,204,900.00
|
March
2037
|
||||
|
I-6-B
|
Variable
(2)
|
$
9,204,900.00
|
March
2037
|
||||
|
I-7-A
|
Variable
(2)
|
$
9,132,952.50
|
March
2037
|
||||
|
I-7-B
|
Variable
(2)
|
$
9,132,952.50
|
March
2037
|
||||
|
I-8-A
|
Variable
(2)
|
$
8,771,128.75
|
March
2037
|
||||
|
I-8-B
|
Variable
(2)
|
$
8,771,128.75
|
March
2037
|
||||
|
I-9-A
|
Variable
(2)
|
$
7,382,617.50
|
March
2037
|
||||
|
I-9-B
|
Variable
(2)
|
$
7,382,617.50
|
March
2037
|
||||
|
I-10-A
|
Variable
(2)
|
$
6,668,737.50
|
March
2037
|
||||
|
I-10-B
|
Variable
(2)
|
$
6,668,737.50
|
March
2037
|
||||
|
I-11-A
|
Variable
(2)
|
$
6,032,302.50
|
March
2037
|
||||
|
I-11-B
|
Variable
(2)
|
$
6,032,302.50
|
March
2037
|
||||
|
I-12-A
|
Variable
(2)
|
$
6,189,516.25
|
March
2037
|
||||
|
I-12-B
|
Variable
(2)
|
$
6,189,516.25
|
March
2037
|
||||
|
I-13-A
|
Variable
(2)
|
$
28,924,417.50
|
March
2037
|
||||
|
I-13-B
|
Variable
(2)
|
$
28,924,417.50
|
March
2037
|
||||
|
I-14-A
|
Variable
(2)
|
$
27,157,228.75
|
March
2037
|
||||
|
I-14-B
|
Variable
(2)
|
$
27,157,228.75
|
March
2037
|
||||
|
I-15-A
|
Variable
(2)
|
$
4,276,727.50
|
March
2037
|
||||
|
I-15-B
|
Variable
(2)
|
$
4,276,727.50
|
March
2037
|
||||
|
I-16-A
|
Variable
(2)
|
$
4,087,601.25
|
March
2037
|
||||
|
I-16-B
|
Variable
(2)
|
$
4,087,601.25
|
March
2037
|
||||
|
I-17-A
|
Variable
(2)
|
$
7,221,091.25
|
March
2037
|
||||
|
I-17-B
|
Variable
(2)
|
$
7,221,091.25
|
March
2037
|
||||
|
I-18-A
|
Variable
(2)
|
$
6,938,052.50
|
March
2037
|
||||
|
I-18-B
|
Variable
(2)
|
$
6,938,052.50
|
March
2037
|
||||
|
I-19-A
|
Variable
(2)
|
$
3,800,918.75
|
March
2037
|
||||
|
I-19-B
|
Variable
(2)
|
$
3,800,918.75
|
March
2037
|
||||
|
I-20-A
|
Variable
(2)
|
$
2,525,243.75
|
March
2037
|
||||
|
I-20-B
|
Variable
(2)
|
$
2,525,243.75
|
March
2037
|
||||
|
I-21-A
|
Variable
(2)
|
$
2,288,115.00
|
March
2037
|
||||
|
I-21-B
|
Variable
(2)
|
$
2,288,115.00
|
March
2037
|
||||
|
I-22-A
|
Variable
(2)
|
$
2,234,573.75
|
March
2037
|
||||
|
I-22-B
|
Variable
(2)
|
$
2,234,573.75
|
March
2037
|
||||
|
I-23-A
|
Variable
(2)
|
$
2,145,568.75
|
March
2037
|
||||
|
I-23-B
|
Variable
(2)
|
$
2,145,568.75
|
March
2037
|
||||
|
I-24-A
|
Variable
(2)
|
$
2,108,407.50
|
March
2037
|
||||
|
I-24-B
|
Variable
(2)
|
$
2,108,407.50
|
March
2037
|
||||
|
I-25-A
|
Variable
(2)
|
$
3,591,075.00
|
March
2037
|
||||
|
I-25-B
|
Variable
(2)
|
$
3,591,075.00
|
March
2037
|
||||
|
I-26-A
|
Variable
(2)
|
$
3,417,387.50
|
March
2037
|
||||
|
I-26-B
|
Variable
(2)
|
$
3,417,387.50
|
March
2037
|
||||
|
I-27-A
|
Variable
(2)
|
$
1,786,016.25
|
March
2037
|
||||
|
I-27-B
|
Variable
(2)
|
$
1,786,016.25
|
March
2037
|
||||
|
I-28-A
|
Variable
(2)
|
$
1,672,731.25
|
March
2037
|
||||
|
I-28-B
|
Variable
(2)
|
$
1,672,731.25
|
March
2037
|
||||
|
I-29-A
|
Variable
(2)
|
$
1,620,861.25
|
March
2037
|
||||
|
I-29-B
|
Variable
(2)
|
$
1,620,861.25
|
March
2037
|
||||
|
I-30-A
|
Variable
(2)
|
$
1,570,657.50
|
March
2037
|
||||
|
I-30-B
|
Variable
(2)
|
$
1,570,657.50
|
March
2037
|
||||
|
I-31-A
|
Variable
(2)
|
$
1,522,060.00
|
March
2037
|
||||
|
I-31-B
|
Variable
(2)
|
$
1,522,060.00
|
March
2037
|
||||
|
I-32-A
|
Variable
(2)
|
$
1,475,020.00
|
March
2037
|
||||
|
I-32-B
|
Variable
(2)
|
$
1,475,020.00
|
March
2037
|
||||
|
I-33-A
|
Variable
(2)
|
$
1,429,482.50
|
March
2037
|
||||
|
I-33-B
|
Variable
(2)
|
$
1,429,482.50
|
March
2037
|
||||
|
I-34-A
|
Variable
(2)
|
$
1,385,397.50
|
March
2037
|
||||
|
I-34-B
|
Variable
(2)
|
$
1,385,397.50
|
March
2037
|
||||
|
I-35-A
|
Variable
(2)
|
$
1,342,715.00
|
March
2037
|
||||
|
I-35-B
|
Variable
(2)
|
$
1,342,715.00
|
March
2037
|
||||
|
I-36-A
|
Variable
(2)
|
$
1,301,391.25
|
March
2037
|
||||
|
I-36-B
|
Variable
(2)
|
$
1,301,391.25
|
March
2037
|
||||
|
I-37-A
|
Variable
(2)
|
$
1,269,397.50
|
March
2037
|
||||
|
I-37-B
|
Variable
(2)
|
$
1,269,397.50
|
March
2037
|
||||
|
I-38-A
|
Variable
(2)
|
$
1,226,582.50
|
March
2037
|
||||
|
I-38-B
|
Variable
(2)
|
$
1,226,582.50
|
March
2037
|
||||
|
I-39-A
|
Variable
(2)
|
$
1,197,820.00
|
March
2037
|
||||
|
I-39-B
|
Variable
(2)
|
$
1,197,820.00
|
March
2037
|
||||
|
I-40-A
|
Variable
(2)
|
$
1,154,805.00
|
March
2037
|
||||
|
I-40-B
|
Variable
(2)
|
$
1,154,805.00
|
March
2037
|
||||
|
I-41-A
|
Variable
(2)
|
$
1,527,275.00
|
March
2037
|
||||
|
I-41-B
|
Variable
(2)
|
$
1,527,275.00
|
March
2037
|
||||
|
I-42-A
|
Variable
(2)
|
$
1,800,310.00
|
March
2037
|
||||
|
I-42-B
|
Variable
(2)
|
$
1,800,310.00
|
March
2037
|
||||
|
I-43-A
|
Variable
(2)
|
$
1,131,718.75
|
March
2037
|
||||
|
I-43-B
|
Variable
(2)
|
$
1,131,718.75
|
March
2037
|
||||
|
I-44-A
|
Variable
(2)
|
$
963,366.25
|
March
2037
|
||||
|
I-44-B
|
Variable
(2)
|
$
963,366.25
|
March
2037
|
||||
|
I-45-A
|
Variable
(2)
|
$
927,810.00
|
March
2037
|
||||
|
I-45-B
|
Variable
(2)
|
$
927,810.00
|
March
2037
|
||||
|
I-46-A
|
Variable
(2)
|
$
900,450.00
|
March
2037
|
||||
|
I-46-B
|
Variable
(2)
|
$
900,450.00
|
March
2037
|
||||
|
I-47-A
|
Variable
(2)
|
$
874,273.75
|
March
2037
|
||||
|
I-47-B
|
Variable
(2)
|
$
874,273.75
|
March
2037
|
||||
|
I-48-A
|
Variable
(2)
|
$
849,963.75
|
March
2037
|
||||
|
I-48-B
|
Variable
(2)
|
$
849,963.75
|
March
2037
|
||||
|
I-49-A
|
Variable
(2)
|
$
1,180,150.00
|
March
2037
|
||||
|
I-49-B
|
Variable
(2)
|
$
1,180,150.00
|
March
2037
|
||||
|
I-50-A
|
Variable
(2)
|
$
1,053,035.00
|
March
2037
|
||||
|
I-50-B
|
Variable
(2)
|
$
1,053,035.00
|
March
2037
|
||||
|
I-51-A
|
Variable
(2)
|
$
25,683,835.00
|
March
2037
|
||||
|
I-51-B
|
Variable
(2)
|
$
25,683,835.00
|
March
2037
|
||||
|
P
|
Variable
(2)
|
$
100.00
|
March
2037
|
||||
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) Calculated
in accordance with the definition of “Uncertificated REMIC 1 Pass-Through Rate”
herein.
REMIC
2
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the REMIC 1 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets shall be designated as “REMIC 2.”
The Class R-2 Interest shall evidence the sole class of “residual interests” in
REMIC 2 for purposes of the REMIC Provisions under federal income tax law.
The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
2 Pass-Through Rate, the initial Uncertificated Principal Balance and, for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC 2 Regular Interests (as
defined herein). None of the REMIC 2 Regular Interests shall be
certificated.
|
Designation
|
Uncertificated
REMIC 2
Pass-Through
Rate
|
Initial
Uncertificated
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
LTAA
|
Variable(2)
|
$
617,336,650.29
|
March
2037
|
|
LTIA1
|
Variable(2)
|
$
2,279,480.00
|
March
2037
|
|
LTIIA1
|
Variable(2)
|
$
1,456,000.00
|
March
2037
|
|
LTIIA2
|
Variable(2)
|
$
255,600.00
|
March
2037
|
|
LTIIA3
|
Variable(2)
|
$
773,700.00
|
March
2037
|
|
LTIIA4
|
Variable(2)
|
$
297,640.00
|
March
2037
|
|
LTM1
|
Variable(2)
|
$
204,760.00
|
March
2037
|
|
LTM2
|
Variable(2)
|
$
185,860.00
|
March
2037
|
|
LTM3
|
Variable(2)
|
$
107,110.00
|
March
2037
|
|
LTM4
|
Variable(2)
|
$
97,660.00
|
March
2037
|
|
LTM5
|
Variable(2)
|
$
91,360.00
|
March
2037
|
|
LTM6
|
Variable(2)
|
$
85,060.00
|
March
2037
|
|
LTM7
|
Variable(2)
|
$
81,910.00
|
March
2037
|
|
LTM8A
|
Variable(2)
|
$
43,000.00
|
March
2037
|
|
LTM8B
|
Variable(2)
|
$
20,000.00
|
March
2037
|
|
LTM9
|
Variable(2)
|
$
59,850.00
|
March
2037
|
|
LTM10
|
Variable(2)
|
$
63,000.00
|
March
2037
|
|
LTZZ
|
Variable(2)
|
$
6,496,717.15
|
March
2037
|
|
LTP
|
Variable(2)
|
$
100.00
|
March
2037
|
|
LTIO
|
Variable(2)
|
(3)
|
March
2037
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) Calculated
in accordance with the definition of “Uncertificated REMIC 2 Pass-Through Rate”
herein.
(3) REMIC
2
Regular Interest LTIO will not have an Uncertificated Principal Balance, but
will accrue interest on its Uncertificated Notional Amount, as defined
herein.
REMIC
3
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the REMIC 2 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets shall be designated as “REMIC 3.”
The Class R-3 Interest shall evidence the sole class of “residual interests” in
REMIC 3 for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the designation, the Pass-Through Rate
and the Original Class Certificate Principal Balance for each Class of
Certificates comprising the interests representing “regular interests” in REMIC
3, and the Class FL Certificates and the Class X Certificates which are not
“regular interests” in REMIC 3. For purposes of satisfying Treasury Regulation
Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for each Class
of Certificates that represents one or more of the “regular interests” in REMIC
3 created hereunder:
|
Designation
|
Original
Class Certificate Principal Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
|
Class
I-A-1
|
$
227,948,000.00
|
Variable(2)
|
March
2037
|
|
Class
II-A-1
|
$
145,600,000.00
|
Variable(2)
|
March
2037
|
|
Class
II-A-2
|
$
25,560,000.00
|
Variable(2)
|
March
2037
|
|
Class
II-A-3
|
$
77,370,000.00
|
Variable(2)
|
March
2037
|
|
Class
II-A-4
|
$
29,764,000.00
|
Variable(2)
|
March
2037
|
|
Class
M-1
|
$
20,476,000.00
|
Variable(2)
|
March
2037
|
|
Class
M-2
|
$
18,586,000.00
|
Variable(2)
|
March
2037
|
|
Class
M-3
|
$
10,711,000.00
|
Variable(2)
|
March
2037
|
|
Class
M-4
|
$
9,766,000.00
|
Variable(2)
|
March
2037
|
|
Class
M-5
|
$
9,136,000.00
|
Variable(2)
|
March
2037
|
|
Class
M-6
|
$
8,506,000.00
|
Variable(2)
|
March
2037
|
|
Class
M-7
|
$
8,191,000.00
|
Variable(2)
|
March
2037
|
|
Class
M-8A
|
$
4,300,000.00
|
Variable(2)
|
March
2037
|
|
Class
M-8B
|
$
2,000,000.00
|
Variable(2)
|
March
2037
|
|
Class
M-9
|
$
5,985,000.00
|
Variable(2)
|
March
2037
|
|
Class
M-10
|
$
6,300,000.00
|
Variable(2)
|
March
2037
|
|
Class FL
|
$
0.00
|
0.00%
|
March
2037
|
|
Class
X
|
$
0.00
|
0.00%
|
March
2037
|
|
Class
C Interest
|
$
19,846,089.69
|
Variable(3)
|
March
2037
|
|
Class
P Interest
|
$
100.00
|
N/A(4)
|
March
2037
|
|
Class
IO Interest
|
(5)
|
(6)
|
March
2037
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) Calculated
in accordance with the definition of “Pass-Through Rate” herein.
(3) The
Class
C Interest will accrue interest at its variable Pass-Through Rate on the
Notional Amount of the Class C Interest outstanding from time to time which
shall equal the aggregate Uncertificated Principal Balance of the REMIC 2
Regular Interests (other than REMIC 2 Regular Interest LTP). The Class C
Interest will not accrue interest on its Certificate Principal
Balance.
(4) The
Class
P Interest will not accrue interest.
(5) For
federal income tax purposes, the Class IO Interest will not have a Certificate
Principal Balance, but will have a notional amount equal to the Uncertificated
Notional Amount of REMIC 2 Regular Interest LTIO.
(6) For
federal income tax purposes, the Class IO Interest will not have a Pass-Through
Rate, but will be entitled to 100% of the amounts distributed on REMIC 2 Regular
Interest LTIO.
REMIC
4
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class C Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC 4.”
The Class R-4 Interest represents the sole class of “residual interests” in
REMIC 4 for purposes of the REMIC Provisions.
The
following table sets forth (or describes) the designation, Pass-Through Rate
,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for the indicated Class of Certificates that represents a “regular
interest” in REMIC 4 created hereunder:
|
Designation
|
Original
Class Certificate Principal Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
|
Class
C Certificates
|
$
19,846,089.69
|
Variable(2)
|
March
2037
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) The
Class
C Certificates will receive 100% of amounts received in respect of the Class
C
Interest.
REMIC
5
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class P Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC 5.”
The Class R-5 Interest represents the sole class of “residual interests” in
REMIC 5 for purposes of the REMIC Provisions.
The
following table sets forth (or describes) the designation, Pass-Through Rate,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for the indicated Class of Certificates that represents a “regular
interest” in REMIC 5 created hereunder:
|
Designation
|
Original
Class Certificate Principal Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
|
Class
P
|
$100.00
|
Variable(2)
|
March
2037
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) The
Class
P Certificates will receive 100% of amounts received in respect of the Class
P
Interest.
REMIC
6
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class IO Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets shall be designated as “REMIC 6.”
The Class R-6 Interest represents the sole class of “residual interests” in
REMIC 6 for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for the indicated REMIC 6 Regular Interest, which will be
uncertificated.
|
Designation
|
Original
Class Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible Maturity Date(1)
|
|
SWAP
IO
|
N/A
|
Variable(2)
|
March
2037
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) REMIC
6
Regular Interest SWAP IO shall receive 100% of amounts received in respect
of
the Class IO Interest.
ARTICLE
I
DEFINITIONS
| SECTION 1.01 |
Defined
Terms.
|
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations in
respect of interest on the Floating Rate Certificates shall be made on the
basis
of the actual number of days elapsed and a 360-day year and all calculations
in
respect of interest on the
Class
C
Certificates and all other calculations of interest described herein shall
be
made on the basis of a 360-day year consisting of twelve 30-day months. The
Class P Certificates and the Residual Certificates are not entitled to
distributions in respect of interest and, accordingly, will not accrue
interest.
“10-K
Filing Deadline” has the meaning set forth in Section
4.05(a)(iv)(A).
“1933
Act”: The Securities Act of 1933, as amended.
“Accepted
Master Servicing Practices”: With respect to any Mortgage Loan, as applicable,
either (x) those customary mortgage loan master servicing practices of prudent
mortgage servicing institutions that master service mortgage loans of the same
type and quality as such Mortgage Loan in the jurisdiction where the related
Mortgaged Property is located, to the extent applicable to the Master Servicer
(except in its capacity as successor to the Servicer), or (y) as provided in
Section 3A.01 hereof, but in no event below the standard set forth in clause
(x).
“Accrual
Period”: With respect to the Floating Rate Certificates and each Distribution
Date, the period commencing on the preceding Distribution Date (or in the case
of the first such Accrual Period, commencing on the Closing Date) and ending
on
the day preceding such Distribution Date. With respect to the Class C
Certificates and each Distribution Date, the calendar month prior to the month
of such Distribution Date.
“Additional
Disclosure Notification”: The meaning set forth in Section
4.05(a)(ii).
“Additional
Form 10-D Disclosure”: The meaning set forth in Section
4.05(a)(i.).
“Additional
Form 10-K Disclosure”: The meaning set forth in Section
4.05(a)(iv).
“Adjustable-Rate
Mortgage Loan”: A first lien Mortgage Loan which provides at any period during
the life of such loan for the adjustment of the Mortgage Rate payable in respect
thereto. The Adjustable-Rate Mortgage Loans are identified as such on the
Mortgage Loan Schedule.
“Adjusted
Net Maximum Mortgage Rate”: With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the applicable Maximum Mortgage Rate for such Mortgage Loan (or the
Mortgage Rate in the case of any Fixed-Rate Mortgage Loan) as of the first
day
of the month preceding the month in which the related Distribution Date occurs
minus the sum
of
(i) the Servicing Fee Rate, (ii) the Administration Fee Rate and (iii) the
Credit Risk Manager Fee Rate.
“Adjusted
Net Mortgage Rate”: With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of interest equal
to the applicable Mortgage Rate for such Mortgage Loan as of the first day
of
the month preceding the month in which the related Distribution Date occurs
minus the
sum
of (i) the Servicing Fee Rate, (ii) the Administration Fee Rate and (iii) the
Credit Risk Manager Fee Rate.
“Adjustment
Date”: With respect to each Adjustable-Rate Mortgage Loan, each adjustment date,
on which the Mortgage Rate of such Mortgage Loan changes pursuant to the related
Mortgage Note. The first Adjustment Date following the Cut-off Date as to each
Adjustable-Rate Mortgage Loan is set forth in the Mortgage Loan
Schedule.
“Administration
Fee”: The amount payable to the Trust Administrator on each Distribution Date
pursuant to Section 8.05 as compensation for all services rendered by the Trust
Administrator in the execution and administration of the trust created hereby
and in the exercise and performance of any of the powers and duties of the
Trust
Administrator hereunder, which amount, with respect to the Mortgage Loans and
REO Properties and for any calendar month, shall be equal to one-twelfth of
the
Administration Fee Rate (without regard to the words “per annum” in the
definition thereof) multiplied by the Stated Principal Balance of the Mortgage
Loans as of the first day of the related Due Period. The fee payable to the
Trustee for all services rendered by it in the exercise and performance of
any
of its respective powers and duties hereunder will be paid by the Trust
Administrator on an annual basis from its own funds in accordance with a
separate agreement between the Trust Administrator and the Trustee.
“Administration
Fee Rate”: 0.0125% per annum.
“Advance”:
As to any Mortgage Loan or REO Property, any advance made by the Master Servicer
or Ocwen in respect of any Distribution Date pursuant to Section
4.04.
“Advance
Facility”: As defined in Section 3.29 hereof.
“Advance
Facility Notice”: As defined in Section 3.29 hereof.
“Advance
Financing Person”: As defined in Section 3.29 hereof.
“Advance
Reimbursement Amounts”: As defined in Section 3.29 hereof.
“Adverse
REMIC Event”: As defined in Section 9.01(f) hereof.
“Affiliate”:
With respect to any Person, any other Person controlling, controlled by or
under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Agreement”:
This Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Allocated
Realized Loss Amount”: With respect to any Distribution Date and any Class of
Mezzanine Certificates, the sum of (i) any Realized Losses allocated to such
Class of Certificates on such Distribution Date and (ii) the amount of any
Allocated Realized Loss Amount for such Class of Certificates remaining
undistributed from the previous Distribution Date as reduced by an amount equal
to the increase in the related Certificate Principal Balance due to the receipt
of Subsequent Recoveries.
“Assessment
of Compliance”: As defined in Section 3.21.
“Assignment”:
An assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form, which is sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect or record the sale of
the
Mortgage.
“Assignment
Agreement”: Any of (i) the Assignment and Recognition Agreement, dated the
Closing Date, among the Seller, Ameriquest Mortgage Company and the Depositor,
pursuant to which certain of the Seller’s rights under the related Master
Agreement were assigned to the Depositor, substantially in the form attached
hereto as Exhibit C-2, (ii) the Assignment and Recognition Agreement, dated
the
Closing Date, among the Seller, Mortgage Network Inc. and the Depositor,
pursuant to which certain of the Seller’s rights under the related Master
Agreement were assigned to the Depositor, substantially in the form attached
hereto as Exhibit C-2 or (iii) the Omnibus Assignment Agreement, dated the
Closing Date, between the Seller and the Depositor, pursuant to which certain
of
the Seller’s rights under certain Master Agreements were assigned to the
Depositor, substantially in the form attached hereto as Exhibit
C-3.
“Assumed
Final Maturity Date”: As to each Class of Certificates, the date set forth as
such in the Prospectus Supplement.
“Attestation
Report”: As defined in Section 3.21.
“Available
Funds”: With respect to any Distribution Date, an amount equal to the excess of
(i) the sum of (a) the aggregate of the related Monthly Payments received on
the
Mortgage Loans on or prior to the related Determination Date, (b) Net
Liquidation Proceeds, Insurance Proceeds, Principal Prepayments, Subsequent
Recoveries, proceeds from repurchases of and substitutions for such Mortgage
Loans and other unscheduled recoveries of principal and interest in respect
of
the Mortgage Loans received during the related Prepayment Period, (c) the
aggregate of any amounts received in respect of a related REO Property withdrawn
from any REO Account and deposited in the Collection Account for such
Distribution Date, (d) the aggregate of any amounts deposited in the Collection
Account (in the case of Ocwen) or the related Custodial Account (in the case
of
each Servicer other than Ocwen) in respect of related Prepayment Interest
Shortfalls for such Distribution Date, (e) the aggregate of any Advances made
by
each Servicer for such Distribution Date in respect of the Mortgage Loans,
(f)
the aggregate of any related advances made by the Trustee in respect of the
Mortgage Loans for such Distribution Date pursuant to Section 7.02, (g) the
amount of any Prepayment Charges collected by each Servicer in connection with
the full or partial prepayment of any of the Mortgage Loans serviced by it
and
any Servicer Prepayment Charge Payment Amount and (h) all income and gain
realized from the investment of funds deposited in the Distribution Account
during the Float Period, over (ii) the sum of (a) amounts reimbursable or
payable to Ocwen pursuant to Section 3.11(a), to the Master Servicer pursuant
to
Section 3A.09 or to each Servicer (other than Ocwen) pursuant to the related
Servicing Agreement, amounts reimburseable or payable to the Credit Risk
Manager, amounts reimburseable to the Trustee pursuant to Section 3.11(b) or
the
Swap Provider (including any Net Swap Payment and Swap Termination Payment
owed
to the Swap Provider, but excluding any Swap Termination Payment owed to the
Swap Provider resulting from a Swap Provider Trigger Event), (b) Extraordinary
Trust Fund Expenses reimbursable to the Trustee, Ocwen, the Master Servicer
or
the Trust Administrator pursuant to 3A.12 or the Trustee pursuant to Section
3.11(b), (c) amounts deposited in the Collection Account, a Custodial Account
or
the Distribution Account pursuant to clauses (a) through (g) above, as the
case
may be, in error, (d) the amount of any Prepayment Charges collected by each
Servicer in connection with the full or partial prepayment of any of the
Mortgage Loans and any Servicer Prepayment Charge Payment Amount, (e) the amount
of any income and gain realized from the investment of funds deposited in the
Distribution Account during the Float Period, (f) any indemnification payments
or expense reimbursements made by the Trust Fund pursuant to Section 6.03 or
Section 8.05 and (g) without duplication, any amounts in respect of the items
set forth in clauses (I)(a) and (I)(b) permitted hereunder to be retained by
the
Master Servicer or to be withdrawn by the Master Servicer from the Distribution
Account pursuant to 3A.12.
“Back-Up
Certification”: The meaning set forth in Section 4.05(a)(iv).
“Balloon
Mortgage Loan”: A Mortgage Loan that provides for the payment of the unamortized
Stated Principal Balance of such Mortgage Loan in a single payment at the
maturity of such Mortgage Loan that is substantially greater than the preceding
monthly payment.
“Balloon
Payment”: A payment of the unamortized Stated Principal Balance of a Mortgage
Loan in a single payment at the maturity of such Mortgage Loan that is
substantially greater than the preceding Monthly Payment.
“Bankruptcy
Code”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Basis
Risk Cap Agreement”: The basis risk cap agreement, dated the Closing Date,
between the Basis Risk Cap Provider and the Trust Administrator on behalf of
the
Trust, including any schedule, confirmations, credit support annex or other
credit support document relating thereto, and attached hereto as Exhibit
U.
“Basis
Risk Cap Amount”: The Basis Risk Cap Amount for any Class of the Floating Rate
Certificates is equal to (i) the aggregate amount received by the Trust from
the
Basis Risk Cap Agreement multiplied by (ii) a fraction equal to (a) the
Certificate Principal Balance of such Class immediately prior to the applicable
Distribution Date divided by (b) the aggregate Certificate Principal Balance
of
the Floating Rate Certificates immediately prior to the applicable Distribution
Date.
“Basis
Risk Cap Collateral Account”: The account or accounts created and maintained
pursuant to Section 4.14.
“Basis
Risk Cap Credit Support Annex”: The credit support annex, dated the Closing
Date, between the Trust Administrator on behalf of the Trust and the Basis
Risk
Cap Provider, which is annexed to and forms a part of the Basis Risk Cap
Agreement.
“Basis
Risk Cap Provider”: The cap provider under the Basis Risk Cap Agreement.
Initially, the Basis Risk Cap Provider shall be Bear Xxxxxxx Financial Products
Inc.
“Book-Entry
Certificates”: Any of the Certificates that shall be registered in the name of
the Depository or its nominee, the ownership of which is reflected on the books
of the Depository or on the books of a Person maintaining an account with the
Depository (directly, as a “Depository Participant”, or indirectly, as an
indirect participant in accordance with the rules of the Depository and as
described in Section 5.02 hereof). On the Closing Date, the Floating Rate
Certificates shall be Book-Entry Certificates.
“Business
Day”: Any
day
other than a Saturday, a Sunday or a day on which banking or savings
institutions in the State of Delaware, the State of New York, the State of
Texas, the State of California, the State of Minnesota or in the city in which
the Corporate Trust Office of the Trustee or the Corporate Trust Office of
the
Trust Administrator is located are authorized or obligated by law or executive
order to be closed.
“Cap
Account”: The account or accounts created and maintained pursuant to Section
4.12. The Cap Account must be an Eligible Account.
“Cap
Allocation Agreement”: The Cap Allocation Agreement, dated as of the Closing
Date between the Trust Administrator and the Cap Trustee, a form of which is
attached hereto as Exhibit G.
“Cap
Trustee”: The Trust Administrator, not in its individual capacity but solely in
its capacity as Cap Trustee, and any successor thereto.
“Certificate”:
Any Regular Certificate or Residual Certificate.
“Certificateholder”
or “Holder”: The Person in whose name a Certificate is registered in the
Certificate Register, except that a Disqualified Organization or non-U.S. Person
shall not be a Holder of a Residual Certificate for any purpose hereof and,
solely for the purposes of giving any consent pursuant to this Agreement, any
Certificate registered in the name of the Depositor, the Servicer or the Master
Servicer or any Affiliate thereof shall be deemed not to be outstanding and
the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent has been obtained, except as otherwise provided in
Section 11.01. The Trust Administrator, the Trustee and the NIMS Insurer may
conclusively rely upon a certificate of the Depositor, a Servicer or the Master
Servicer in determining whether a Certificate is held by an Affiliate thereof.
All references herein to “Holders” or “Certificateholders” shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and participating members thereof, except as otherwise specified
herein; provided, however, that the Trust Administrator, the Trustee and the
NIMS Insurer shall be required to recognize as a “Holder” or “Certificateholder”
only the Person in whose name a Certificate is registered in the Certificate
Register.
“Certificate
Margin”: With respect to the Floating Rate Certificates and for purposes of the
Marker Rate and the Maximum Uncertificated Accrued Interest Deferral Amount,
the
specified REMIC 2 Regular Interest, as follows:
|
Class
|
REMIC
2 Regular Interest
|
Certificate
Margin
|
|
|
(1)
(%)
|
(2)
(%)
|
||
|
I-A-1
|
LTIA1
|
0.150%
|
0.300%
|
|
XX-X-0
|
XXXXX0
|
0.090%
|
0.180%
|
|
XX-X-0
|
XXXXX0
|
0.130%
|
0.260%
|
|
XX-X-0
|
XXXXX0
|
0.170%
|
0.340%
|
|
XX-X-0
|
XXXXX0
|
0.250%
|
0.500%
|
|
M-1
|
LTM1
|
0.320%
|
0.480%
|
|
M-2
|
LTM2
|
0.350%
|
0.525%
|
|
M-3
|
LTM3
|
0.400%
|
0.600%
|
|
M-4
|
LTM4
|
0.680%
|
1.020%
|
|
M-5
|
LTM5
|
0.780%
|
1.170%
|
|
M-6
|
LTM6
|
1.000%
|
1.500%
|
|
M-7
|
LTM7
|
1.700%
|
2.550%
|
|
M-8A
|
LTM8A
|
2.000%
|
3.000%
|
|
M-8B
|
LTM8B
|
0.400%
|
0.600%
|
|
M-9
|
LTM9
|
2.000%
|
3.000%
|
|
M-10
|
LTM10
|
2.000%
|
3.000%
|
__________
(1) For
the
Accrual Period for each Distribution Date on or prior to the Optional
Termination Date.
(2) For
each
other Accrual Period.
“Certificate
Owner”: With respect to each Book-Entry Certificate, any beneficial owner
thereof.
“Certificate
Principal Balance”: With respect to any Class of Regular Certificates (other
than the Class C Certificates) immediately prior to any Distribution Date,
will
be equal to the Initial Certificate Principal Balance thereof plus any
Subsequent Recoveries added to the Certificate Principal Balance of such
Certificate pursuant to Section 4.01, reduced by the sum of all amounts actually
distributed in respect of principal of such Class and, in the case of a
Mezzanine Certificate, Realized Losses allocated thereto on all prior
Distribution Dates. With respect to the Class C Certificates as of any date
of
determination, an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balance of the REMIC 2 Regular Interests over (B)
the
then aggregate Certificate Principal Balance of the Floating Rate Certificates
and the Class P Certificates then outstanding.
“Certificate
Register” and “Certificate Registrar”: The register maintained and registrar
appointed pursuant to Section 5.02 hereof.
“Certification”:
As defined in Section 4.05(b)(iii).
“Certification
Parties”: The meaning set forth in Section 4.05(a)(iv).
“Certifying
Person”: The meaning set forth in Section 4.05(a)(iv).
“Class”:
Collectively, Certificates which have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
I-A-1 Certificate”: Any one of the Class I-A-1 Certificates executed by the
Trust Administrator, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-1, representing
(i) a Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-1 Certificate”: Any one of the Class II-A-1 Certificates executed by the
Trust Administrator, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-2, representing
(i) a Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-2 Certificate”: Any one of the Class II-A-2 Certificates executed by the
Trust Administrator, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-3, representing
(i) a Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-3 Certificate”: Any one of the Class II-A-3 Certificates executed by the
Trust Administrator, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-4, representing
(i) a Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-4 Certificate”: Any one of the Class II-A-4 Certificates executed by the
Trust Administrator, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-5, representing
(i) a Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
C
Certificates”: Any one of the Class C Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed hereto
as Exhibit A-17, representing (i) a Regular Interest in REMIC 4, (ii) the
obligation to pay Net WAC Rate Carryover Amounts and Swap Termination Payments
and (iii) the right to receive the Class IO Distribution Amount.
“Class
C
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class C Certificates, evidencing a Regular Interest
in REMIC 3 for purposes of the REMIC Provisions.
“Class
FL Certificate”: Any one of the Class FL
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-22, representing the right to
distributions as set forth herein.
“Class
IO
Distribution Amount”: As defined in Section 4.10 hereof. For purposes of
clarity, the Class IO Distribution Amount for any Distribution Date shall equal
the amount payable to the Trust Administrator on such Distribution Date in
excess of the amount payable on the Class IO Interest on such Distribution
Date,
all as further provided in Section 4.10 hereof.
“Class
IO
Interest”: An uncertificated interest in the Trust Fund evidencing a Regular
Interest in REMIC 3.
“Class
M-1 Certificate”: Any one of the Class M-1 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-6, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-1 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date) and (ii) the Certificate Principal Balance of the Class
M-1 Certificates immediately prior to such Distribution Date over (y) the lesser
of (A) the product of (i) 67.20% and (ii) the Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the
Overcollateralization Floor.
“Class
M-2 Certificate”: Any one of the Class M-2 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-7, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-2 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date) and (iii) the
Certificate Principal Balance of the Class M-2 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 73.10%
and
(ii) the Stated Principal Balance of the Mortgage Loans as of the last day
of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
M-3 Certificate”: Any one of the Class M-3 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-8, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-3 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date) and (iv) the Certificate Principal Balance of the Class M-3 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 76.50% and (ii) the Stated Principal Balance of the Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) and (B) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) minus the Overcollateralization
Floor.
“Class
M-4 Certificate”: Any one of the Class M-4 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-9, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-4 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date) and (v) the Certificate Principal
Balance of the Class M-4 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 79.60% and (ii) the Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
(B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus the Overcollateralization Floor.
“Class
M-5 Certificate”: Any one of the Class M-5 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-10, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-5 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date) and (iv) the Certificate Principal Balance of the Class M-5 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 82.50% and (ii) the Stated Principal Balance of the Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) and (B) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) minus the Overcollateralization
Floor.
“Class
M-6 Certificate”: Any one of the Class M-6 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-11, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-6 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date) and (vii) the Certificate
Principal Balance of the Class M-6 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 85.20% and
(ii)
the Stated Principal Balance of the Mortgage Loans as of the last day of the
related Due Period (after giving effect to scheduled payments of principal
due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
M-7 Certificate”: Any one of the Class M-7 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-12, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-7 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (viii) the Certificate Principal Balance of the Class M-7 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 87.80% and (ii) the Stated Principal Balance of the Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) and (B) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) minus the Overcollateralization
Floor.
“Class
M-8 Certificate”: Any Class M-8A Certificates or Class M-8B
Certificates.
“Class
M-8A Certificate”: Any one of the Class M-8A Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-13, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-8B Certificate”: Any one of the Class M-8B Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-14, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-8 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date) and (ix) the aggregate
Certificate Principal Balance of the Class M-8A Certificates and Class M-8B
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) 89.80% and (ii) the Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the
Overcollateralization Floor.
“Class
M-9 Certificate”: Any one of the Class M-9 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-15, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-9 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (ix) the
aggregate Certificate Principal Balance of the Class M-8A Certificates and
Class
M-8B Certificates (after taking into account the distribution of the Class
M-8
Principal Distribution Amount on such Distribution Date) and
(x)
the Certificate Principal Balance of the Class M-9 Certificates immediately
prior to such Distribution Date over (y) the lesser of (A) the product of (i)
91.70% and (ii) the Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
“Class
M-10 Certificate”: Any one of the Class M-10 Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-16, representing (i)
a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
M-10 Principal Distribution Amount: The excess of (x) the sum of (i) the
aggregate Certificate Principal Balance of the Senior Certificates (after taking
into account the distribution of the Senior Principal Distribution Amount on
such Distribution Date), (ii) the Certificate Principal Balance of the Class
M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (ix) the aggregate Certificate
Principal Balance of the Class M-8A Certificates and Class M-8B Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date) and (xi) the Certificate Principal Balance of the Class M-10 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 93.70% and (ii) the Stated Principal Balance of the Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) and (B) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) minus the Overcollateralization
Floor.
“Class
P
Certificates”: Any one of the Class P Certificates executed by the Trust
Administrator, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-18, representing a Regular
Interest in REMIC 5.
“Class
P
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class P Certificates, evidencing a Regular Interest
in REMIC 3 for purposes of the REMIC Provisions.
“Class
R
Certificate”: The Class R Certificate executed by the Trust Administrator, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-19 and evidencing the ownership of the Class
R-1 Interest, the Class R-2 Interest and the Class R-3 Interest.
“Class
R-X Certificate”: The Class R-X Certificate executed by the Trust Administrator,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-20 and evidencing the ownership of the
Class R-4 Interest, the Class R-5 Interest and the Class R-6
Interest.
“Class
R-1 Interest”: The uncertificated Residual Interest in REMIC 1.
“Class
R-2 Interest”: The uncertificated Residual Interest in REMIC 2.
“Class
R-3 Interest”: The uncertificated Residual Interest in REMIC 3.
“Class
R-4 Interest”: The uncertificated Residual Interest in REMIC 4.
“Class
R-5 Interest”: The uncertificated Residual Interest in REMIC 5.
“Class
R-6 Interest”: The uncertificated Residual Interest in REMIC 6.
“Class
X
Certificate”: The Class X Certificates executed by the Trust Administrator, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-21, representing the right to distributions
as
set forth herein.
“Close
of
Business”: As used herein, with respect to any Business Day, 5:00 p.m. (New York
time).
“Closing
Date”: February 28, 2007.
“Code”:
The Internal Revenue Code of 1986, as amended.
“Collection
Account”: The account or accounts created and maintained by Ocwen pursuant to
Section 3.10(a), which shall be titled “Ocwen
Loan Servicing, LLC, as Servicer for Deutsche Bank National Trust Company as
Trustee, in trust for the registered Holders of Soundview
Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1,” which must be
an Eligible Account.
“Commission”:
The U.S. Securities and Exchange Commission.
“Compensating
Interest”: With respect to Ocwen and any voluntary Principal Prepayment in full,
the amount
in
respect of Prepayment Interest Shortfalls required to be paid by Ocwen pursuant
to Section 3.24 from its own funds without right of reimbursement.
With
respect to each Servicer other than Ocwen and any Principal Prepayment, the
amount in respect of Prepayment Interest Shortfalls required to be paid by
such
Servicer pursuant to the related Servicing Agreement from its own funds without
right of reimbursement. With respect to the Master Servicer, the amount in
respect of Prepayment Interest Shortfalls required to be paid by the Master
Servicer pursuant to Section 3A.10 from its own funds without right of
reimbursement except as provided in Section 3A.10.
“Corporate
Trust Office”: The principal corporate trust office of the Trustee or the Trust
Administrator, as the case may be, at which at any particular time its corporate
trust business in connection with this Agreement shall be administered, which
office at the date of the execution of this instrument is located at, (i) with
respect to the Trustee, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000-0000, or at such other address as the Trustee may designate from time
to
time by notice to the Certificateholders, the Depositor, the Servicer, the
Master Servicer, the Originator, and the Trust Administrator, or (ii) with
respect to the Trust Administrator, (A) for Certificate transfer and surrender
purposes, Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services—Soundview
2007-1 and (B) for all other purposes, Xxxxx Fargo Bank, N.A., 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services—Soundview 2007-1, or in each case, at such other address as the Trust
Administrator may designate from time to time by notice to the
Certificateholders, the Depositor, the Servicer, the Master Servicer, the
Originator and the Trustee.
“Corresponding
Certificate”: With respect to each REMIC 2 Regular Interest set forth below, the
corresponding Regular Certificate set forth in the table below:
|
REMIC
2 Regular Interest
|
Regular
Certificate
|
|
LTIA1
|
Class
I-A-1
|
|
LTIIA1
|
Class
II-A-1
|
|
LTIIA2
|
Class
II-A-2
|
|
LTIIA3
|
Class
II-A-3
|
|
LTIIA4
|
Class
II-A-4
|
|
LTM1
|
Class
M-1
|
|
LTM2
|
Class
M-2
|
|
LTM3
|
Class
M-3
|
|
LTM4
|
Class
M-4
|
|
LTM5
|
Class
M-5
|
|
LTM6
|
Class
M-6
|
|
LTM7
|
Class
M-7
|
|
LTM8A
|
Class
M-8A
|
|
LTM8B
|
Class
M-8B
|
|
LTM9
|
Class
M-9
|
|
LTM10
|
Class
M-10
|
|
LTP
|
Class
P
|
“Credit
Enhancement Percentage”: For any Distribution Date, the percentage equivalent of
a fraction, the numerator of which is the aggregate Certificate Principal
Balance of the Mezzanine Certificates and the Class C Certificates, and the
denominator of which is the aggregate Stated Principal Balance of the Mortgage
Loans, calculated prior to taking into account payments of principal on the
Mortgage Loans and distribution of the Group I Principal Distribution Amount
and
the Group II Principal Distribution Amount to the Holders of the Certificates
then entitled to distributions of principal on such Distribution
Date.
“Credit
Risk Management Agreement”: The respective agreements between the Credit Risk
Manager and each Servicer and/or Master Servicer regarding the loss mitigation
and advisory services to be provided by the Credit Risk Manager.
“Credit
Risk Manager”: Xxxxxxx Fixed Income Services Inc., a Colorado corporation, and
its successors and assigns.
“Credit
Risk Manager Fee”: The amount payable to the Credit Risk Manager on each
Distribution Date as compensation for all services rendered by it in the
exercise and performance of any of the powers and duties of the Credit Risk
Manager under the Credit Risk Management Agreement and any other agreement
pursuant to which the Credit Risk Manager is to perform any duties with respect
to the Mortgage Loans, which amount shall equal one twelfth of the product
of
(i) the Credit Risk Manager Fee Rate (without regard to the words “per annum”)
and (ii) the aggregate Stated Principal Balance of the Mortgage Loans and any
related REO Properties as of the first day of the related Due
Period.
“Credit
Risk Manager Fee Rate”: 0.0125% per annum.
“Cumulative
Loss Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of
Realized Losses incurred from the Cut-off Date to the last day of the preceding
calendar month and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
“Custodial
Account”: The account or accounts created and maintained by each Servicer (other
than Ocwen) pursuant to the related Servicing Agreement, which must be an
Eligible Account.
“Custodial
Agreement”: Any of (i) the Custodial Agreement, dated February 1, 2007, among
Deutsche Bank National Trust Company as Trustee, U.S. Bank National Association
as custodian and Ocwen Loan Servicing, LLC as servicer and (ii) the Custodial
Agreement, dated February 1, 2007, among Deutsche Bank National Trust Company
as
Trustee, The Bank of New York Trust Company, N.A. as custodian and Xxxxx Fargo
Bank, N.A. as servicer.
“Custodian”:
Any of Deutsche Bank National Trust Company, U.S. Bank National Association
or
The
Bank
of New York Trust Company, N.A. as
custodian of the Mortgage Files, or any successor thereto.
“Cut-off
Date”: February 1, 2007.
“Cut-off
Date Principal Balance”: With respect to any Mortgage Loan, the unpaid Stated
Principal Balance thereof as of the Cut-off Date of such Mortgage Loan (or
as of
the applicable date of substitution with respect to a Qualified Substitute
Mortgage Loan), after giving effect to scheduled payments due on or before
the
Cut-off Date, whether or not received.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding Stated Principal Balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy
Code.
“Definitive
Certificates”: As defined in Section 5.02(c) hereof.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by one or more
Qualified Substitute Mortgage Loans.
“Delinquency
Percentage”: For any Distribution Date, the percentage obtained by dividing (x)
the aggregate Stated Principal Balance of Mortgage Loans that are Delinquent
60
days or more (including Mortgage Loans that are in foreclosure, that have been
converted to REO Properties or that are in bankruptcy and are Delinquent 60
days
or more) in each case, as of the last day of the previous calendar month by
(y)
the aggregate Stated Principal Balance of the Mortgage Loans (in each case,
after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period).
“Delinquent”:
With respect to any Mortgage Loan and related Monthly Payment, the Monthly
Payment due on a Due Date which is not made by the Close of Business on the
next
scheduled Due Date for such Mortgage Loan. For example, a Mortgage Loan is
60 or
more days Delinquent if the Monthly Payment due on a Due Date is not made by
the
Close of Business on the second scheduled Due Date after such Due
Date.
“Depositor”:
Financial Asset Securities Corp., a Delaware corporation, or any successor
in
interest.
“Depository”:
The initial Depository shall be The Depository Trust Company, whose nominee
is
Cede & Co., or any other organization registered as a “clearing agency”
pursuant to Section 17A of the Exchange Act. The Depository shall initially
be the registered Holder of the Book-Entry Certificates. The Depository shall
at
all times be a “clearing corporation” as defined in Section 8-102(3) of the
Uniform Commercial Code of the State of New York.
“Depository
Participant”: A broker, dealer, bank or other financial institution or other
person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Determination
Date”: With respect to any Distribution Date, the 15th
day of
the calendar month in which such Distribution Date occurs or, if such
15th
day is
not a Business Day, the Business Day immediately preceding such 15th
day.
“Directly
Operate”: With respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers,
the
performance of any construction work thereon or any use of such REO Property
in
a trade or business conducted by any REMIC other than through an Independent
Contractor; provided, however, that the Trustee (or a Servicer or the Master
Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or a Servicer or the Master Servicer
on behalf of the Trustee) establishes rental terms, chooses tenants, enters
into
or renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such REO Property.
“Disqualified
Organization”: A “disqualified organization” under Section 860E of the Code,
which as of the Closing Date is any of: (i) the United States, any state or
political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (ii)
any
organization (other than a cooperative described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code unless such
organization is subject to the tax imposed by Section 511 of the Code, (iii)
any
organization described in Section 1381(a)(2)(C) of the Code or (iv) an “electing
large partnership” within the meaning of Section 775 of the Code. A corporation
will not be treated as an instrumentality of the United States or of any state
or political subdivision thereof, if all of its activities are subject to tax
and a majority of its board of directors is not selected by a governmental
unit.
The term “United States”, “state” and “international organizations” shall have
the meanings set forth in Section 7701 of the Code.
“Distribution
Account”: The trust account or accounts created and maintained by the Trust
Administrator pursuant to Section 3.10(b) which shall be titled “Distribution
Account, Xxxxx Fargo Bank, N.A. as Trust Administrator, in trust for the
registered Certificateholders of Soundview Home Loan Trust 2007-1, Asset-Backed
Certificates, Series 2007-1” and which must be an Eligible Account.
“Distribution
Date”: The 25th
day of
any calendar month, or if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day,
commencing in March 2007.
“Due
Date”: With respect to each Mortgage Loan and any Distribution Date, the first
day of the calendar month in which such Distribution Date occurs on which the
Monthly Payment for such Mortgage Loan was due (or, in the case of any Mortgage
Loan under the terms of which the Monthly Payment for such Mortgage Loan was
due
on a day other than the first day of the calendar month in which such
Distribution Date occurs, the day during the related Due Period on which such
Monthly Payment was due), exclusive of any days of grace.
“Due
Period”: With respect to any Distribution Date, the period commencing on the
second day of the month preceding the month in which such Distribution Date
occurs and ending on the first day of the month in which such Distribution
Date
occurs.
“Eligible
Account”: Any of (i) an account or accounts maintained with a federal or state
chartered depository institution or trust company the short-term unsecured
debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated A-1+ by S&P,
F-1 by Fitch and P-1 by Xxxxx’x (or comparable ratings if S&P, Fitch and
Xxxxx’x are not the Rating Agencies) at the time any amounts are held on deposit
therein, (ii) an account or accounts the deposits in which are fully insured
by
the FDIC up to the insured amount, (iii) a trust account or accounts maintained
with the trust department of a federal or state chartered depository
institution, national banking association or trust company acting in its
fiduciary capacity or (iv) an account otherwise acceptable to each Rating Agency
without reduction or withdrawal of their then current ratings of the
Certificates as evidenced by a letter from each Rating Agency to the Trust
Administrator, the Trustee and the NIMS Insurer. Eligible Accounts may bear
interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended.
“Escrow
Payments”: The amounts constituting ground rents, taxes, assessments, water
rates, fire and hazard insurance premiums and other payments required to be
escrowed by the Mortgagor with the mortgagee pursuant to any Mortgage
Loan.
“Estimated
Swap Termination Payment”: As defined in the Interest Rate Swap Agreement.
“Excess
Overcollateralized Amount”: With respect to the Floating Rate Certificates and
any Distribution Date, the excess, if any, of the sum of (i) the
Overcollateralized Amount for such Distribution Date, assuming that 100% of
the
Principal Remittance Amount is applied as a principal payment on such
Distribution Date and (ii) any amounts received under the Interest Rate Swap
Agreement and the Interest Rate Cap Agreement for such purpose over (iii) the
Overcollateralization Target Amount for such Distribution Date.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
“Extra
Principal Distribution Amount”: With respect to any Distribution Date, the
lesser of (x) the Monthly Interest Distributable Amount distributable on the
Class C Certificates on such Distribution Date as reduced by Realized Losses
allocated thereto with respect to such Distribution Date pursuant to Section
4.08 and (y) the Overcollateralization Deficiency Amount for such Distribution
Date.
“Extraordinary
Trust Fund Expense”: Any amounts reimbursable to the Master Servicer pursuant to
Section 3A.03 or Section 6.03, to Ocwen, the Trustee or the Trust Administrator,
or any director, officer, employee or agent of the Trustee or the Trust
Administrator from the Trust Fund pursuant to Section 6.03, Section 8.05 or
Section 10.01(c) and any amounts payable from the Distribution Account in
respect of taxes pursuant to Section 10.01(g)(iii).
“Xxxxxx
Xxx”: Federal National Mortgage Association or any successor
thereto.
“FDIC”:
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Recovery Determination”: With respect to any defaulted Mortgage Loan or any REO
Property (other than a Mortgage Loan or REO Property purchased by an Originator,
the Seller or Ocwen pursuant to or as contemplated by Section 2.03, Section
3.16(c) or Section 10.01), a determination made by the related Servicer that
all
Insurance Proceeds, Liquidation Proceeds and other payments or recoveries which
such Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. Ocwen
shall maintain records, prepared by a
Servicing Officer, of each Final Recovery Determination made
thereby.
“Fitch”:
Fitch Ratings, or its successor in interest.
“Fixed-Rate
Mortgage Loan”: A first lien Mortgage Loan which provides for a fixed Mortgage
Rate payable with respect thereto. The Fixed-Rate Mortgage Loans are identified
as such on the Mortgage Loan Schedule.
“Fixed
Swap Payment”: With respect to any Distribution Date, a fixed amount equal to
the related amount set forth in the Interest Rate Swap Agreement.
“Float
Period”: With respect to any Distribution Date and amounts in the Distribution
Account, the period commencing on the related Servicer Remittance Date and
ending on the Business Day prior to the Distribution Date.
“Floating
Rate Certificates”: The Senior Certificates and the Mezzanine
Certificates.
“Floating
Swap Payment”: With respect to any Distribution Date, a floating amount equal to
the product of (i) Swap LIBOR, (ii) the related Notional Amount (as defined
in
the Interest Rate Swap Agreement), (iii) 250 and (iv) a fraction, the numerator
of which is the actual number of days elapsed from and including the previous
Floating Rate Payer Payment Date (as defined in the Interest Rate Swap
Agreement) to but excluding the current Floating Rate Payer Payment (or, for
the
first Floating Rate Payer Payment Date, the actual number of days elapsed from
the Closing Date to but excluding the first Floating Rate Payer Payment Date),
and the denominator of which is 360.
“Form
8-K
Disclosure Information”: The meaning set forth in Section
4.05(a)(iii).
“Formula
Rate”: For any Distribution Date and the Floating Rate Certificates, the lesser
of (a) the sum of (i) LIBOR plus (ii) the related Certificate Margin and (b)
the
Maximum Cap Rate.
“Xxxxxxx
Mac”: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
“Gross
Margin”: With respect to each Adjustable-Rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the Index
on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Mortgage Loan.
“Group
I
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is (i) the Group I Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
(ii) the Principal Remittance Amount for such Distribution Date.
“Group
I
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group I Principal Remittance Amount for such Distribution
Date
over (ii)(a) the Overcollateralization Release Amount, if any, for such
Distribution Date multiplied by (b) the Group I Allocation
Percentage.
“Group
I
Certificates”: The Class I-A-1 Certificates.
“Group
I
Initial Deposit”: An amount equal to $12,024.27 deposited with the Trust
Administrator by the Depositor on the Closing Date.
“Group
I
Interest Remittance Amount”: With respect to any Distribution Date, that portion
of the Available Funds for such Distribution Date attributable to interest
received or advanced with respect to the Group I Mortgage Loans.
“Group
I
Mortgage Loan”: A Mortgage Loan assigned to Loan Group I with a Stated Principal
Balance at origination that conforms to Xxxxxx Xxx and Xxxxxxx Mac loan limits.
The aggregate principal balance of the Group I Mortgage Loans as of the Cut-off
Date is equal to $283,681,616.64.
“Group
I
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of (i) the Group I Basic Principal Distribution Amount for such Distribution
Date, (ii)(a) the Extra Principal Distribution Amount for such Distribution
Date
multiplied by (b) the Group I Allocation Percentage and (iii) with respect
to
the first Distribution Date, the Group I Initial Deposit.
“Group
I
Principal Remittance Amount”: With respect to any Distribution Date, that
portion of Available Funds equal to the sum of (i) each scheduled payment of
principal collected or advanced on the Group I Mortgage Loans by the related
Servicer that were due during the related Due Period, (ii) the principal portion
of all full Principal Prepayments of the Group I Mortgage Loans applied by
the
related Servicer during the related Prepayment Period, (iii) the principal
portion of all related partial Principal Prepayments, Net Liquidation Proceeds,
Insurance Proceeds and Subsequent Recoveries received during the related
Prepayment Period with respect to the Group I Mortgage Loans, (iv) that portion
of the Purchase Price, representing principal of any repurchased Group I
Mortgage Loan, deposited to the Collection Account or a Custodial Account during
the related Prepayment Period, (v) the principal portion of any related
Substitution Adjustments deposited in the Collection Account or a Custodial
Account during the related Prepayment Period with respect to the Group I
Mortgage Loans and (vi) on the Distribution Date on which the Trust Fund is
to
be terminated pursuant to Section 10.01, that portion of the Termination Price,
in respect of principal on the Group I Mortgage Loans.
“Group
I
Senior Principal Distribution Amount”: The excess of (x) the Certificate
Principal Balance of the Group I Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 60.70% and
(ii)
the aggregate Stated Principal Balance of the Group I Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) minus the related Overcollateralization
Floor.
“Group
II
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is (i) the Group II Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
(ii) the Principal Remittance Amount for such Distribution Date.
“Group
II
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group II Principal Remittance Amount for such Distribution
Date over (ii)(a) the Overcollateralization Release Amount, if any, for such
Distribution Date multiplied by (b) the Group II Allocation
Percentage.
“Group
II
Certificates”: Collectively, the Class II-A-1 Certificates, the Class II-A-2
Certificates, the Class II-A-3 Certificates and the Class II-A-4
Certificates.
“Group
II
Initial Deposit”: An amount equal to $97,707.98 deposited with the Trust
Administrator by the Depositor on the Closing Date.
“Group
II
Interest Remittance Amount”: With respect to any Distribution Date, that portion
of the Available Funds for such Distribution Date attributable to interest
received or advanced with respect to the Group II Mortgage Loans.
“Group
II
Mortgage Loan”: A Mortgage Loan assigned to Loan Group II with a Stated
Principal Balance at origination that may or may not conform to Xxxxxx Mae
and
Xxxxxxx Mac loan limits. The aggregate principal balance of the Group II
Mortgage Loans as of the Cut-off Date is equal to $346,253,840.80.
“Group
II
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of (i) the Group II Basic Principal Distribution Amount for such Distribution
Date, (ii)(a) the Extra Principal Distribution Amount for such Distribution
Date
multiplied by (b) the Group II Allocation Percentage and (iii) with respect
to
the first Distribution Date, the Group II Initial Deposit.
“Group
II
Principal Remittance Amount”: With respect to any Distribution Date, that
portion of Available Funds equal to the sum of (i) each scheduled payment of
principal collected or advanced on the Group II Mortgage Loans by the related
Servicer that were due during the related Due Period, (ii) the principal portion
of all full Principal Prepayments of the Group II Mortgage Loans applied by
the
related Servicer during the related Prepayment Period, (iii) the principal
portion of all related partial Principal Prepayments, Net Liquidation Proceeds,
Insurance Proceeds and Subsequent Recoveries received during the related
Prepayment Period with respect to the Group II Mortgage Loans, (iv) that portion
of the Purchase Price, representing principal of any repurchased Group II
Mortgage Loan, deposited to the Collection Account or a Custodial Account during
the related Prepayment Period, (v) the principal portion of any related
Substitution Adjustments deposited in the Collection Account or a Custodial
Account during the related Prepayment Period with respect to the Group II
Mortgage Loans and (vi) on the Distribution Date on which the Trust Fund is
to
be terminated pursuant to Section 10.01, that portion of the Termination Price,
in respect of principal on the Group II Mortgage Loans.
“Group
II
Senior Principal Distribution Amount”: The excess of (x) the Certificate
Principal Balance of the Group II Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 60.70% and
(ii)
the aggregate Stated Principal Balance of the Group II Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Group II Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) minus the related Overcollateralization
Floor.
“Highest
Priority”: As of any date of determination, the Class of Mezzanine Certificates
then outstanding with a Certificate Principal Balance greater than zero, with
the highest priority for payments pursuant to Section 4.01, in the following
order of decreasing priority: Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8 (concurrently, to the holders of the Class
M-8A Certificates and the Class M-8B Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such class), Class M-9 and
Class M-10 Certificates.
“Indenture”:
An indenture relating to the issuance of notes secured by the Class C
Certificates, the Class P Certificates and/or the Class R Certificates (or
any
portion thereof) which may or may not be guaranteed by the NIMS
Insurer.
“Independent”:
When used with respect to any specified Person, any such Person who (a) is
in
fact independent of the Depositor, each Servicer or the Master Servicer and
their respective Affiliates, (b) does not have any direct financial interest
in
or any material indirect financial interest in the Depositor or any Servicer
or
any Affiliate thereof, and (c) is not connected with the Depositor or any
Servicer or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor or a Servicer or any Affiliate thereof merely because such Person
is
the beneficial owner of 1% or less of any class of securities issued by the
Depositor or such Servicer or any Affiliate thereof, as the case may
be.
“Independent
Contractor”: Either (i) any Person (other than a Servicer or the Master
Servicer) that would be an “independent contractor” with respect to any of the
REMICs created hereunder within the meaning of Section 856(d)(3) of the Code
if
such REMIC were a real estate investment trust (except that the ownership tests
set forth in that section shall be considered to be met by any Person that
owns,
directly or indirectly, 35% or more of any Class of Certificates), so long
as
each such REMIC does not receive or derive any income from such Person and
provided that the relationship between such Person and such REMIC is at arm’s
length, all within the meaning of Treasury Regulation Section 1.856-4(b)(5),
or
(ii) any other Person (including a Servicer and the Master Servicer) if the
Trust Administrator has received an Opinion of Counsel for the benefit of the
Trustee and the Trust Administrator to the effect that the taking of any action
in respect of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a)
of
the Code), or cause any income realized in respect of such REO Property to
fail
to qualify as Rents from Real Property.
“Index”:
With respect to each Adjustable-Rate Mortgage Loan and with respect to each
related Adjustment Date, the index as specified in the related Mortgage
Note.
“Initial
Certificate Principal Balance”: With respect to any Regular Certificate, the
amount designated “Initial Certificate Principal Balance” on the face
thereof.
“Insurance
Proceeds”: Proceeds of any title policy, hazard policy or other insurance policy
covering a Mortgage Loan, to the extent such proceeds are received by the
related Servicer and are not to be applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the
procedures that such Servicer would follow in servicing mortgage loans held
for
its own account, subject to the terms and conditions of the related Mortgage
Note and Mortgage.
“Interest
Determination Date”: With respect to the Floating Rate Certificates and each
Accrual Period, the second LIBOR Business Day preceding the commencement of
such
Accrual Period.
“Interest
Rate Cap Agreement”: The interest rate swap agreement, dated the Closing Date
between the Cap Trustee and the Interest Rate Cap Provider, including any
schedule, confirmations, credit support annex or other credit support document
relating thereto, and attached hereto as Exhibit O.
“Interest
Rate Cap Collateral Account”: The account or accounts created and maintained
pursuant to Section 4.14.
“Interest
Rate Cap Credit Support Annex”: The credit support annex, dated the Closing
Date, between the Cap Trustee on behalf of the Cap Trust and the Interest Rate
Cap Provider, which is annexed to and forms a part of the Interest Rate Cap
Agreement.
“Interest
Rate Cap Provider”: The cap provider under the Interest Rate Cap Agreement.
Initially, the Interest Rate Cap Provider shall be Bear Xxxxxxx Financial
Products Inc.
“Interest
Rate Swap Agreement”: The interest rate swap agreement, dated the Closing Date,
between the Supplemental Interest Trust Trustee on behalf of the Cap Trust
and
the Swap Provider, including any schedule, confirmations, credit support annex
or other credit support document relating thereto, and attached hereto as
Exhibit Q.
“Late
Collections”: With respect to any Mortgage Loan, all amounts received by the
related Servicer subsequent to the Determination Date immediately following
any
related Due Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late payments
or
collections of principal and/or interest due (without regard to any acceleration
of payments under the related Mortgage and Mortgage Note) but delinquent on
a
contractual basis for such Due Period and not previously recovered.
“LIBOR”:
With respect to each Accrual Period, the rate determined by the Trust
Administrator on the related Interest Determination Date on the basis of the
London interbank offered rate for one-month United States dollar deposits,
as
such rate appears on the Telerate Page 3750, as of 11:00 a.m. (London time)
on
such Interest Determination Date. If such rate does not appear on Telerate
Page
3750, the rate for such Interest Determination Date will be determined on the
basis of the offered rates of the Reference Banks for one-month United States
dollar deposits, as of 11:00 a.m. (London time) on such Interest Determination
Date. The Trust Administrator will request the principal London office of each
of the Reference Banks to provide a quotation of its rate. On such Interest
Determination Date, LIBOR for the related Accrual Period will be established
by
the Trust Administrator as follows:
(i) If
on
such Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the arithmetic
mean of such offered quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16 of 1%); and
(ii) If
on
such Interest Determination Date fewer than two Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the higher
of
(i) LIBOR as determined on the previous Interest Determination Date and (ii)
the
Reserve Interest Rate.
“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.
“Liquidated
Mortgage Loan”: As to any Distribution Date, any Mortgage Loan in respect of
which the related Servicer has determined, in accordance with its reasonable
judgment, as of the end of the related Prepayment Period, that all Liquidation
Proceeds which it expects to recover with respect to the liquidation of the
Mortgage Loan or disposition of the related REO Property have been
recovered.
“Liquidation
Event”: With respect to any Mortgage Loan, any of the following events: (i) such
Mortgage Loan is paid in full, (ii) a Final Recovery Determination is made
as to
such Mortgage Loan or (iii) such Mortgage Loan is removed from the Trust Fund
by
reason of its being purchased, sold or replaced pursuant to or as contemplated
by Section 2.03, Section 3.16(c) or Section 10.01. With respect to any REO
Property, either of the following events: (i) a Final Recovery Determination
is
made as to such REO Property or (ii) such REO Property is removed from the
Trust
Fund by reason of its being sold or purchased pursuant to Section 3.23 or
Section 10.01.
“Liquidation
Proceeds”: The amount (other than amounts received in respect of the rental of
any REO Property prior to REO Disposition) received by the related Servicer
in
connection with (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation, (ii) the liquidation
of
a defaulted Mortgage Loan by means of a trustee’s sale, foreclosure sale or
otherwise or (iii) the repurchase, substitution or sale of a Mortgage Loan or an
REO Property pursuant to or as contemplated by Section 2.03, Section 3.16(c),
Section 3.23 or Section 10.01.
“Loan-to-Value
Ratio”: As of any date and as to any Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Stated Principal Balance of the
Mortgage Loan and the denominator of which is the Value of the related Mortgaged
Property.
“Loan
Group”: Either Loan Group I or Loan Group II, as the context
requires.
“Loan
Group I”: The group of Mortgage Loans identified in the Mortgage Loan Schedule
as having been assigned to Loan Group I.
“Loan
Group II”: The group of Mortgage Loans identified in the Mortgage Loan Schedule
as having been assigned to Loan Group II.
“Losses”:
As defined in Section 9.03.
“Lost
Note Affidavit”: With respect to any Mortgage Loan as to which the original
Mortgage Note has been permanently lost, misplaced or destroyed and has not
been
replaced, an affidavit from the related Originator certifying that the original
Mortgage Note has been lost, misplaced or destroyed (together with a copy of
the
related Mortgage Note) and indemnifying the Trust against any loss, cost or
liability resulting from the failure to deliver the original Mortgage Note
in
the form of Exhibit H hereto.
“Majority
Certificateholders”: The Holders of Certificates evidencing at least 51% of the
Voting Rights.
“Marker
Rate”: With respect to the Class C Interest and any Distribution Date, a per
annum rate equal to two (2) times the weighted average of the Uncertificated
REMIC 2 Pass-Through Rates for each REMIC 2 Regular Interest (other than REMIC
2
Regular Interest LTAA, REMIC 2 Regular Interest LTIO and REMIC 2 Regular
Interest LTP), with the rate on each such REMIC 2 Regular Interest (other than
REMIC 2 Regular Interest LTZZ) subject to a cap equal to the Pass-Through Rate
for the Corresponding Certificate for the purpose of this calculation; and
with
the rate on REMIC 2 Regular Interest LTZZ subject to a cap of zero for the
purpose of this calculation; provided, however, that solely for this purpose,
calculations of the Uncertificated REMIC 2 Pass-Through Rate and the related
caps with respect to each such REMIC 2 Regular Interest (other than REMIC 2
Regular Interest LTZZ) shall be multiplied by a fraction, the numerator of
which
is the actual number of days in the related Accrual Period and the denominator
of which is 30.
“Master
Agreement”: Each of the Master Mortgage Loan Purchase and Interim Servicing
Agreements betweeen the related Originator and the Seller.
“Master
Servicer”: As of the Closing Date, Xxxxx Fargo Bank, N.A. and thereafter, its
respective successors in interest who meet the qualifications of the Master
Servicer under this Agreement or any successor appointed hereunder. The Master
Servicer and the Trust Administrator shall at all times be the same
Person.
“Master
Servicer Event of Termination”: One or more of the events described in Section
7.01(b).
“Master
Servicing Compensation”: The meaning specified in Section 3A.09.
“Master
Servicing Transfer Costs”: Shall mean all reasonable out-of-pocket costs and
expenses incurred by the Trustee in connection with the transfer of master
servicing from a predecessor master servicer, including, without limitation,
any
reasonable costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Trustee (or other successor master servicer)
to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Trustee (or other successor master servicer) to master service the
Mortgage Loans properly and effectively.
“Maximum
Cap Rate”: For any Distribution Date with respect to the Floating Rate
Certificates, a per annum rate equal to the product of (i) the sum of (x) the
weighted average of the Adjusted Net Maximum Mortgage Rates of the Mortgage
Loans (weighted based on the Stated Principal Balances of the Mortgage Loans
as
of the first
day
of the related Due Period or, in the case of the first Distribution Date, the
Cut-off Date, adjusted, except in the case of the first Distribution Date,
to
reflect unscheduled principal payments made thereafter during
the Prepayment Period that includes such first day of the related Due Period)
minus the Swap Expense Fee Rate and (y) an amount, expressed as a percentage,
equal to a fraction, the numerator of which is equal to any Net Swap Payment
made by the Swap Provider and the denominator of which is equal to the aggregate
Stated Principal Balance of the Mortgage Loans as of the first day of the
related Due Period (adjusted to reflect unscheduled principal payments made
thereafter during the Prepayment Period that includes such first day),
multiplied by 12 and (ii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days elapsed in the related Accrual Period.
“Maximum
Mortgage Rate”: With respect to each Adjustable Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
“Maximum
Uncertificated Accrued Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (a) accrued interest at the Uncertificated
REMIC 2 Pass-Through Rate applicable to REMIC 2 Regular Interest LTZZ for such
Distribution Date on a balance equal to the Uncertificated Principal Balance
of
REMIC 2 Regular Interest LTZZ minus the REMIC 2 Overcollateralization Amount,
in
each case for such Distribution Date, over (b) the sum of the Uncertificated
Accrued Interest on REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest
LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC
2
Regular Interest LTIIA3,
REMIC 2
Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest
LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2
Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest
LTM7, REMIC 2 Regular Interest LTM8A, REMIC 2 Regular Interest LTM8B, REMIC
2
Regular Interest LTM9 and REMIC 2 Regular Interest LTM10 with the rate on each
such REMIC 2 Regular Interest subject to a cap equal to the Pass-Through Rate
for the related Corresponding Certificate for the purpose of this calculation;
provided, however, that for this purpose, calculations of the Uncertificated
REMIC 2 Pass-Through Rate and the related caps with respect to each such REMIC
2
Regular Interest (other than REMIC 2 Regular Interest LTZZ) shall be multiplied
by a fraction, the numerator of which is the actual number of days elapsed
in
the related Accrual Period and the denominator of which is 30.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS®
System”: The system of recording transfers of Mortgages electronically
maintained by MERS.
“Mezzanine
Certificate”: Any Class M-1 Certificate, Class M-2 Certificate, Class M-3
Certificate, Class M-4 Certificate, Class M-5 Certificate, Class M-6
Certificate, Class M-7 Certificate, Class M-8A Certificate, Class M-8B
Certificate, Class M-9 Certificate or Class M-10 Certificate.
“MIN”:
The Mortgage Identification Number for Mortgage Loans registered with MERS
on
the MERS® System.
“Minimum
Mortgage Rate”: With respect to each Adjustable Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
“MOM
Loan”: With respect to any applicable Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination
thereof.
“Monthly
Interest Distributable Amount”: With respect to the Floating Rate Certificates
and the Class C Certificates and any Distribution Date, the amount of interest
accrued during the related Accrual Period at the related Pass-Through Rate
on
the Certificate Principal Balance (or Notional Amount in the case of the Class
C
Certificates) of such Class immediately prior to such Distribution Date, in
each
case, reduced by any Net Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls (allocated to such Certificate based on its respective entitlements
to interest irrespective of any Net Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls for such Distribution Date).
“Monthly
Payment”: With respect to any Mortgage Loan, the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by the related
Mortgagor from time to time under the related Mortgage Note, determined: (a)
after giving effect to (i) any Deficient Valuation and/or Debt Service Reduction
with respect to such Mortgage Loan, (ii) any modifications to a Mortgage Loan
pursuant to Section 3.07 and (iii) any reduction in the amount of interest
collectible from the related Mortgagor pursuant to the Relief Act; (b) without
giving effect to any extension granted or agreed to by Ocwen pursuant to clause
(ii) of Section 3.07 or by a Servicer (other than Ocwen) pursuant to the related
Servicing Agreement; and (c) on the assumption that all other amounts, if any,
due under such Mortgage Loan are paid when due.
“Xxxxx’x”:
Xxxxx’x Investors Service, Inc., or its successor in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first or second
lien
on, or first or second priority security interest in, a Mortgaged Property
securing a Mortgage Note.
“Mortgage
File”: The mortgage documents listed in Section 2.01 pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
“Mortgage
Loan”: Each mortgage loan transferred and assigned to the Trustee pursuant to
Section 2.01 or Section 2.03(d) as from time to time held as a part of the
Trust
Fund, the Mortgage Loans so held being identified in the Mortgage Loan
Schedule.
“Mortgage
Loan Schedule”: As of any date, the list of Mortgage Loans included in REMIC 1
on such date, separately identifying the Group I Mortgage Loans and the Group
II
Mortgage Loans, attached hereto as Exhibit D. The Mortgage Loan Schedule shall
be prepared by the Seller and shall set forth the following information with
respect to each Mortgage Loan, as applicable:
| (1) |
the
Mortgage Loan identifying number;
|
| (2) |
[reserved];
|
| (3) |
the
state and zip code of the Mortgaged
Property;
|
| (4) |
a
code indicating whether the Mortgaged Property was represented by
the
borrower, at the time of origination, as being
owner-occupied;
|
| (5) |
the
type of Residential Dwelling constituting the Mortgaged
Property;
|
| (6) |
the
original months to maturity;
|
| (7) |
the
stated remaining months to maturity from the Cut-off Date based on
the
original amortization schedule;
|
| (8) |
the
Loan-to-Value Ratio at origination;
|
| (9) |
the
Mortgage Rate in effect immediately following the Cut-off
Date;
|
| (10) |
the
date on which the first Monthly Payment was due on the Mortgage
Loan;
|
| (11) |
the
stated maturity date;
|
| (12) |
the
amount of the Monthly Payment at
origination;
|
| (13) |
the
amount of the Monthly Payment due on the first Due Date after the
Cut-off
Date;
|
| (14) |
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
| (15) |
the
original principal amount of the Mortgage
Loan;
|
| (16) |
the
Stated Principal Balance of the Mortgage Loan as of the Close of
Business
on the Cut-off Date;
|
| (17) |
a
code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, rate/term refinancing, cash-out
refinancing);
|
| (18) |
the
Mortgage Rate at origination;
|
| (19) |
a
code indicating the documentation program (i.e., full documentation,
limited income verification, no income verification, alternative
income
verification);
|
| (20) |
the
risk grade;
|
| (21) |
the
Value of the Mortgaged Property;
|
| (22) |
the
sale price of the Mortgaged Property, if
applicable;
|
| (23) |
the
actual unpaid principal balance of the Mortgage Loan as of the Cut-off
Date;
|
| (24) |
the
type and term of the related Prepayment
Charge;
|
| (25) |
with
respect to any Adjustable-Rate Mortgage Loan, the rounding code,
the
Minimum Mortgage Rate, the Maximum Mortgage Rate, the Gross Margin,
the
next Adjustment Date and the Periodic Rate
Cap;
|
| (26) |
the
program code;
|
| (27) |
the
lien priority;
|
| (28) |
the
Originator and the Servicer;
|
| (29) |
the
Loan Group; and
|
| (30) |
the
MIN, if applicable.
|
The
Mortgage Loan Schedule shall set forth the following information, with respect
to the Mortgage Loans in the aggregate and for each Loan Group as of the Cut-off
Date: (1) the number of Mortgage Loans; (2) the current Principal Balance of
the
Mortgage Loans; (3) the weighted average Mortgage Rate of the Mortgage Loans
and
(4) the weighted average remaining term to maturity of the Mortgage Loans.
The
Mortgage Loan Schedule shall be amended from time to time by the Depositor
in
accordance with the provisions of this Agreement. With respect to any Qualified
Substitute Mortgage Loan, Cut-off Date shall refer to the Cut-off Date for
such
Mortgage Loan, determined in accordance with the definition of Cut-off Date
herein. On the Closing Date, the Depositor will deliver to each Servicer, as
of
the Cut-off Date, an electronic copy of the Mortgage Loan Schedule.
“Mortgage
Note”: The original executed note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgage
Pool”: The pool of Mortgage Loans, identified on Exhibit D from time to time,
and any REO Properties acquired in respect thereof.
“Mortgage
Rate”: With respect to each Fixed-Rate Mortgage Loan, the rate set forth in the
related Mortgage Note. With respect to each Adjustable-Rate Mortgage Loan,
the
annual rate at which interest accrues on such Mortgage Loan from time to time
in
accordance with the provisions of the related Mortgage Note, which rate (A)
as
of any date of determination until the first Adjustment Date following the
Cut-off Date shall be the rate set forth in the Mortgage Loan Schedule as the
Mortgage Rate in effect immediately following the Cut-off Date and (B) as of
any
date of determination thereafter shall be the rate as adjusted on the most
recent Adjustment Date, to equal the sum, rounded to the next highest or nearest
0.125% (as provided in the Mortgage Note), of the Index, determined as set
forth
in the related Mortgage Note, plus the related Gross Margin subject to the
limitations set forth in the related Mortgage Note. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination,
the
annual rate determined in accordance with the immediately preceding sentence
as
of the date such Mortgage Loan became an REO Property.
“Mortgaged
Property”: The underlying property securing a Mortgage Loan, including any REO
Property, consisting of a fee simple estate in a parcel of real property
improved by a Residential Dwelling.
“Mortgagor”:
The obligor on a Mortgage Note.
“Net
Liquidation Proceeds”: With respect to any Liquidated Mortgage Loan or any other
disposition of related Mortgaged Property (including REO Property) the related
Liquidation Proceeds and Insurance Proceeds net of Advances, Servicing Advances,
Servicing Fees and any other accrued and unpaid servicing fees or ancillary
income received and retained in connection with the liquidation of such Mortgage
Loan or Mortgaged Property.
“Net
Monthly Excess Cashflow”: With respect to each Distribution Date, the sum of (a)
any Overcollateralization Release Amount for such Distribution Date and (b)
the
excess of (x) Available Funds for such Distribution Date over (y) the sum for
such Distribution Date of (A) the Monthly Interest Distributable Amounts for
the
Floating Rate Certificates, (B) the Unpaid Interest Shortfall Amounts for the
Senior Certificates and (C) the Principal Remittance Amount.
“Net
Mortgage Rate”: With respect to any Mortgage Loan (or the related REO Property),
as of any date of determination, a per annum rate of interest equal to the
then
applicable Mortgage Rate for such Mortgage Loan minus the Servicing Fee
Rate.
“Net
Prepayment Interest Shortfall”: With respect to any Distribution Date, the
excess, if any, of any Prepayment Interest Shortfalls for such date over the
related Compensating Interest.
“Net
Swap
Payment”: In the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment and in the case of
payments made by the Swap Provider, the excess, if any, of (x) the Floating
Swap
Payment over (y) the Fixed Swap Payment. In each case, the Net Swap Payment
shall not be less than zero.
“Net
WAC
Rate”: With respect to the Floating Rate Certificates, for the first
Distribution Date, such rate shall be 6.94788%, and for any Distribution Date
following the first Distribution Date, such rate shall be a per annum rate
equal
to the product of (x) the weighted average of the Adjusted Net Mortgage Rates
of
the Mortgage Loans (weighted based on the Stated Principal Balances of the
Mortgage Loans as of the first day of the related Due Period or, in the case
of
the first Distribution Date, the Cut-off Date, adjusted, except in the case
of
the first Distribution Date, to reflect unscheduled principal payments made
thereafter during the Prepayment Period that includes such first day of the
related Due Period) minus the Swap Expense Fee Rate and (y) a fraction, the
numerator of which is 30 and the denominator of which is the actual number
of
days elapsed in the related Accrual Period. For federal income tax purposes,
the
equivalent of the foregoing shall be expressed as a per annum rate equal to
the
weighted average of the Uncertificated REMIC 2 Pass-Through Rates on each REMIC
2 Regular Interest (other than REMIC 2 Regular Interests LTIO), weighted on
the
basis of the Uncertificated Principal Balance of each such REMIC 2 Regular
Interest.
“Net
WAC
Rate Carryover Amount”: With respect to the Floating Rate Certificates and any
Distribution Date, the sum of (A) the positive excess of (i) the amount of
interest accrued on such Class of Certificates on such Distribution Date
calculated at the related Formula Rate over (ii) the amount of interest accrued
on such Class of Certificates at the Net WAC Rate for such Distribution Date
and
(B) the Net WAC Rate Carryover Amount for the previous Distribution Date not
previously paid, together with interest thereon at a rate equal to the related
Formula Rate for the most recently ended Accrual Period.
“Net
WAC
Rate Carryover Reserve Account”: The account established and maintained pursuant
to Section 4.13.
“New
Lease”: Any lease of REO Property entered into on behalf of the Trust, including
any lease renewed or extended on behalf of the Trust if the Trust has the right
to renegotiate the terms of such lease.
“NIMS
Insurer”: Any insurer that is guaranteeing certain payments under notes secured
by collateral which includes all or a portion of the Class C Certificates,
the
Class P Certificates and/or the Residual Certificates.
“Nonrecoverable
Advance”: Any Advance or Servicing Advance previously made or proposed to be
made in respect of a Mortgage Loan or REO Property that, in the good faith
business judgment of the related Servicer or the Master Servicer, as applicable,
will not be ultimately recoverable from Late Collections, Insurance Proceeds,
Liquidation Proceeds or condemnation proceeds on such Mortgage Loan or REO
Property as provided herein.
“Nonrecoverable
Servicing Advance”: Any Servicing Advance previously made or proposed to be made
in respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the related Servicer, will not or, in the case of a proposed
Servicing Advance, would not be ultimately recoverable from related Late
Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan
or
REO Property as provided herein.
“Notional
Amount”: Immediately prior to any Distribution Date with respect to the Class C
Interest, the aggregate Uncertificated Principal Balance of the REMIC 2 Regular
Interests (other than the REMIC 2 Regular Interest LTP).
“Ocwen”:
Ocwen Loan Servicing, LLC.
“Ocwen
Mortgage Loans”: The Mortgage Loans serviced by Ocwen pursuant to the terms of
this Agreement.
“Offered
Certificates”: The Senior Certificates and the Mezzanine Certificates offered to
the public pursuant to the Prospectus Supplement.
“Officers’
Certificate”: A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a vice president (however denominated),
or by the Treasurer, the Secretary, or one of the assistant treasurers or
assistant secretaries of any Servicer, the Master Servicer, the Originator,
the
Seller or the Depositor, as applicable.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be a
salaried counsel for the Depositor, the Seller, any Servicer or the Master
Servicer, acceptable to the Trustee, if such opinion is delivered to the
Trustee, or acceptable to the Trust Administrator, if such opinion is delivered
to the Trust Administrator, except that any opinion of counsel relating to
(a)
the qualification of any REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
“Optional
Termination Date”: The first Distribution Date on which the Terminator may opt
to terminate the Trust Fund pursuant to Section 10.01.
“Original
Class Certificate Principal Balance”:
With
respect to the Floating Rate Certificates, the Class C Certificates, the Class
C
Interest, the Class IO Interest, REMIC 6 Regular Interest SWAP IO, the Class
P
Certificates and the Class P Interest, the corresponding amounts set forth
opposite such Class above in the Preliminary Statement.
“Originator”:
Any of Mortgage Lenders Network USA, Ameriquest Mortgage Company, Mortgaeg
Network Inc., Nationstar Mortgage LLC, First NLC Financial Services LLC, Fremont
Investment & Loan, New Century Mortgage Corporation, Countrywide Home Loans,
LP, NovaStar Mortgage Inc., Long Beach Mortgage Company, Meritage Mortgage
Corporation and Aames Financial Corp., or their successors in
interest.
“Overcollateralization
Deficiency Amount”: With respect to any Distribution Date, the amount, if any,
by which the Overcollateralization Target Amount exceeds the Overcollateralized
Amount on such Distribution Date (assuming that 100% of the Principal Remittance
Amount is applied as a principal distribution on such Distribution
Date).
“Overcollateralization
Floor”: With respect to the Group I Certificates, $1,433,019,
with respect to the Group II Certificates, $1,717,207 and with respect to the
Mezzanine Certificates, $3,150,226.
“Overcollateralization
Release Amount”: With respect to any Distribution Date, the lesser of (x) the
Principal Remittance Amount for such Distribution Date and (y) the Excess
Overcollateralized Amount.
“Overcollateralization
Target Amount”: With
respect to any Distribution Date, (i) prior to the Stepdown Date, an amount
equal to 3.15% of
the
aggregate Cut-off Date Principal Balance of the Mortgage Loans,
(ii) on
or after the Stepdown Date provided a Trigger Event is not in effect, the
greater of (A) 6.30% of the aggregate Stated Principal Balance of the Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) and (B) 0.50%
of
the
aggregate Cut-off Date Principal Balance of the Mortgage Loans and (iii) on
or
after the Stepdown Date if a Trigger Event is in effect, the
Overcollateralization Target Amount for the immediately preceding Distribution
Date.
Notwithstanding the foregoing, on and after any Distribution Date following
the
reduction of the aggregate Certificate Principal Balance of the Floating Rate
Certificates to zero, the Overcollateralization Target Amount shall be
zero.
“Overcollateralized
Amount”: For any Distribution Date, the amount equal to (i) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
(ii) the aggregate Certificate Principal Balance of the Floating Rate
Certificates and the Class P Certificates as of such Distribution Date after
giving effect to distributions to be made on such Distribution
Date.
“Ownership
Interest”: As to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
“Pass-Through
Rate”: With respect to the Floating
Rate Certificates and any Distribution Date, the lesser of (a) the related
Formula Rate and (b) the Net WAC Rate for such Distribution Date.
With
respect to the Class C Interest and any Distribution Date, a per annum rate
equal to the percentage equivalent of a fraction, the numerator of which is
(x)
the sum of (i) 100% of the interest on REMIC 2 Regular Interest LTP and (ii)
interest on the Uncertificated Balance of each REMIC 2 Regular Interest listed
in clause (y) at a rate equal to the related Uncertificated REMIC 2 Pass-Through
Rate minus the Marker Rate and the denominator of which is (y) the aggregate
Uncertificated Principal Balance of REMIC 2 Regular Interests XXXX, XXXX0,
XXXXX0, LTIIA2, LTIIA3, LTIIA4, LTM1, LTM2, LTM3, LTM4, LTM5, LTM6, LTM7, LTM8A,
LTM8B, LTM9, LTM10
and
LTZZ.
With
respect to the Class C Certificates, 100% of the interest distributable to
the
Class C Interest, expressed as a per annum rate.
The
Class
IO Interest shall not have a Pass-Through Rate, but interest for such Regular
Interest and each Distribution Date shall be an amount equal to 100% of the
amounts distributable to REMIC 2 Regular Interest LTIO.
The
REMIC
6 Regular Interest SWAP-IO Interest shall not have a Pass-Through Rate, but
interest for such Regular Interest and each Distribution Date shall be an amount
equal to 100% of the amounts distributable to the Class IO Interest for such
Distribution Date.
The
Class
P Certificates, Class R Certificates and Class R-X Certificates will not accrue
interest and therefore will not have a Pass-Through Rate.
“Paying
Agent”: Any paying agent appointed pursuant to Section 5.05.
“Percentage
Interest”: With respect to any Certificate (other than a Residual Certificate),
a fraction, expressed as a percentage, the numerator of which is the Initial
Certificate Principal Balance represented by such Certificate and the
denominator of which is the Original Class Certificate Principal Balance of
the
related Class. With respect to a Residual Certificate, the portion of the Class
evidenced thereby, expressed as a percentage, as stated on the face of such
Certificate; provided, however, that the sum of all such percentages for each
such Class totals 100%.
“Periodic
Rate Cap”: With respect to each Adjustable-Rate Mortgage Loan and any Adjustment
Date therefor, the fixed percentage set forth in the related Mortgage Note,
which is the maximum amount by which the Mortgage Rate for such Mortgage Loan
may increase or decrease (without regard to the Maximum Mortgage Rate or the
Minimum Mortgage Rate) on such Adjustment Date from the Mortgage Rate in effect
immediately prior to such Adjustment Date.
“Permitted
Investments”: Any one or more of the following obligations or securities
acquired at a purchase price of not greater than par, regardless of whether
issued or managed by the Depositor, the Servicer, the Master Servicer, the
Trustee, the Trust Administrator or any of their respective Affiliates or for
which an Affiliate of the Trustee or the Trust Administrator serves as an
advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee or its agent acting in their respective commercial
capacities) incorporated under the laws of the United States of America or
any
state thereof and subject to supervision and examination by federal and/or
state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution or trust
company (or, if the only Rating Agency is S&P, in the case of the principal
depository institution in a depository institution holding company, debt
obligations of the depository institution holding company) or its ultimate
parent has a short-term uninsured debt rating in one of the two highest
available ratings of Xxxxx’x and the highest available rating category of Fitch
and S&P and provided that each such investment has an original maturity of
no more than 365 days; and provided further that, if the only Rating Agency
is
S&P and if the depository or trust company is a principal subsidiary of a
bank holding company and the debt obligations of such subsidiary are not
separately rated, the applicable rating shall be that of the bank holding
company; and, provided further that, if the original maturity of such short-
term obligations of a domestic branch of a foreign depository institution or
trust company shall exceed 30 days, the short-term rating of such institution
shall be A-1+ in the case of S&P if S&P is the Rating Agency; and (B)
any other demand or time deposit or deposit which is fully insured by the
FDIC;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal) rated F-1+ or higher by Fitch, P-1 by
Xxxxx’x and rated A-1+ or higher by S&P, provided, however, that collateral
transferred pursuant to such repurchase obligation must be of the type described
in clause (i) above and must (A) be valued daily at current market prices plus
accrued interest, (B) pursuant to such valuation, be equal, at all times, to
105% of the cash transferred by the Trust Administrator in exchange for such
collateral and (C) be delivered to the Trust Administrator or, if the Trust
Administrator is supplying the collateral, an agent for the Trust Administrator,
in such a manner as to accomplish perfection of a security interest in the
collateral by possession of certificated securities;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any State thereof
and that are rated by S&P (and if rated by any other Rating Agency, also by
such other Rating Agency) in its highest long-term unsecured rating category
at
the time of such investment or contractual commitment providing for such
investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by S&P
(and if rated by any other Rating Agency, also by such other Rating Agency)
in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units
of
money market funds, including those money market funds managed or advised by
the
Trust Administrator or its Affiliates, that have been rated “AAA” by Fitch (if
rated by Fitch), “Aaa” by Xxxxx’x and “AAAm” or “AAAm-G” by S&P;
and
(vii) if
previously confirmed in writing to the Trustee and the Trust Administrator,
any
other demand, money market or time deposit, or any other obligation, security
or
investment, as may be acceptable to the Rating Agencies in writing as a
permitted investment of funds backing securities having ratings equivalent
to
its highest initial rating of the Senior Certificates;
provided,
that no instrument described hereunder shall evidence either the right to
receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
“Permitted
Transferee”: Any transferee of a Residual Certificate other than a Disqualified
Organization or a non-U.S. Person.
“Person”:
Any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Plan”:
Any employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“Pool
Balance”: As of any date of determination, the aggregate Stated Principal
Balance of the Mortgage Loans in both Loan Groups as of such date.
“Prepayment
Assumption”: As defined in the Prospectus Supplement.
“Prepayment
Charge”: With respect to any Mortgage Loan, the charges or premiums, if any, due
in connection with a full or partial Principal Prepayment of such Mortgage
Loan
in accordance with the terms thereof (other than any Servicer Prepayment Charge
Payment Amount).
“Prepayment
Charge Schedule”: As of any date, the list of Prepayment Charges on the Mortgage
Loans included in the Trust Fund on such date, attached hereto as Schedule
I
(including the prepayment charge summary attached thereto). The Prepayment
Charge Schedule shall set forth the following information with respect to each
Prepayment Charge:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination of the related Mortgage Loan;
(iv) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(v) the
term
of the related Prepayment Charge; and
(vi) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
The
Prepayment Charge Schedule shall be amended from time to time by the Depositor
in accordance with the provisions of this Agreement and a copy of such amended
Prepayment Charge Schedule shall be furnished by the Servicer to the NIMS
Insurer.
“Prepayment
Interest Excess”: With respect to any Distribution Date, for each Mortgage Loan
serviced by Ocwen that was the subject of a Principal Prepayment in full during
the portion of the related Prepayment Period occurring between the first day
and
the 15th
day of
the calendar month in which such Distribution Date occurs, an amount equal
to
interest (to the extent received) at the applicable Net Mortgage Rate on the
amount of such Principal Prepayment in full for the number of days commencing
on
the first day of the calendar month in which such Distribution Date occurs
and
ending on the date on which such prepayment is so applied.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each Mortgage
Loan that was the subject of a Principal Prepayment during the portion of the
related Prepayment Period occurring from the first day of the related Prepayment
Period through the last day of the calendar month preceding the month in which
such Distribution Date occurs, an amount equal to one-month’s interest at the
applicable Net Mortgage Rate less any payments made by the Mortgagor on the
amount of such Principal Prepayment for the number of days commencing on the
date such Principal Prepayment is received and ending on the last day of the
calendar month preceding the month in which such Distribution Date
occurs.
“Prepayment
Period”: With respect to any Distribution Date and each Mortgage Loan serviced
by Ocwen, for prepayments in full, the period commencing on the 16th
day of
the calendar month preceding the calendar month in which such Distribution
Date
occurs (or, in the case of the first Distribution Date, from February 1, 2007)
and ending on the 15th
day of
the calendar month in which the related Distribution Date occurs. The
Prepayment Period with respect to prepayments in part is the preceding calendar
month.
“Principal
Balance”: As to any Mortgage Loan other than a Liquidated Mortgage Loan, and any
day, the related Cut-off Date Principal Balance, minus all collections credited
against the Cut-off Date Principal Balance of any such Mortgage Loan. For
purposes of this definition, a Liquidated Mortgage Loan shall be deemed to
have
a Principal Balance equal to the Principal Balance of the related Mortgage
Loan
as of the final recovery of related Liquidation Proceeds and a Principal Balance
of zero thereafter. As to any REO Property and any day, the Principal Balance
of
the related Mortgage Loan immediately prior to such Mortgage Loan becoming
REO
Property minus any REO Principal Amortization received with respect thereto
on
or prior to such day.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing the full amount of scheduled
interest due on any Due Date in any month or months subsequent to the month
of
prepayment.
“Principal
Remittance Amount”: With respect to any Distribution Date, the sum of the Group
I Principal Remittance Amount and the Group II Principal Remittance
Amount.
“Prospectus
Supplement”: That certain Prospectus Supplement dated February 23, 2007 relating
to the public offering of the Offered Certificates.
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased by the
Seller or Ocwen pursuant to or as contemplated by Section 2.03, Section 3.16(c)
or Section 10.01, and as confirmed by an Officers’ Certificate from the party
purchasing the Mortgage Loan to the Trustee, an amount equal to the sum of
(i)
100% of the Stated Principal Balance thereof as of the date of purchase (or
such
other price as provided in Section 10.01), (ii) in the case of (x) a Mortgage
Loan, accrued interest on such Stated Principal Balance at the applicable
Mortgage Rate in effect from time to time from the Due Date as to which interest
was last covered by a payment by the Mortgagor or an Advance by the related
Servicer, which payment or Advance had as of the date of purchase been
distributed pursuant to Section 4.01, through the end of the calendar month
in
which the purchase is to be effected, and (y) an REO Property, the sum of (1)
accrued interest on such Stated Principal Balance at the applicable Mortgage
Rate in effect from time to time from the Due Date as to which interest was
last
covered by a payment by the Mortgagor or an advance by the related Servicer
through the end of the calendar month immediately preceding the calendar month
in which such REO Property was acquired, plus (2) REO Imputed Interest for
such
REO Property for each calendar month commencing with the calendar month in
which
such REO Property was acquired and ending with the calendar month in which
such
purchase is to be effected, net of the total of all net rental income, Insurance
Proceeds, Liquidation Proceeds and Advances that as of the date of purchase
had
been distributed as or to cover REO Imputed Interest pursuant to Section 4.04,
(iii) any unreimbursed Servicing Advances and Advances and any unpaid Servicing
Fees allocable to such Mortgage Loan or REO Property, (iv) any amounts
previously withdrawn from the Collection Account or the related Custodial
Account in respect of such Mortgage Loan or REO Property pursuant to Section
3.23 and (v) in the case of a Mortgage Loan required to be purchased pursuant
to
Section 2.03, expenses reasonably incurred or to be incurred by a Servicer,
the
Master Servicer, the Trust Administrator or the Trustee in respect of the breach
or defect giving rise to the purchase obligation, including any costs and
damages incurred by the Trust Fund in connection with any violation with respect
to such loan of any predatory or abusive lending law. With respect to an
Originator and any Mortgage Loan or REO Property to be purchased pursuant to
or
as contemplated by Section 2.03 or 10.01, and as confirmed by a certificate
of
an Officers’ Certificate of the Originator to the Trustee, an amount equal to
the amount set forth pursuant to the terms of the related Master
Agreement.
“Qualified
Insurer”: Any insurance company acceptable to Xxxxxx Xxx.
“Qualified
Substitute Mortgage Loan”: With respect to the Seller, a mortgage loan
substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement
which must, on the date of such substitution, (i) have an outstanding Stated
Principal Balance (or in the case of a substitution of more than one mortgage
loan for a Deleted Mortgage Loan, an aggregate Stated Principal Balance), after
application of all scheduled payments of principal and interest due during
or
prior to the month of substitution, not in excess of, and not more than 5%
less
than, the outstanding Stated Principal Balance of the Deleted Mortgage Loan
as
of the Due Date in the calendar month during which the substitution occurs,
(ii)
have a Mortgage Rate not less than (and not more than one percentage point
in
excess of) the Mortgage Rate of the Deleted Mortgage Loan, (iii) if the
Qualified Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have
a
Maximum Mortgage Rate not less than the Maximum Mortgage Rate on the Deleted
Mortgage Loan, (iv) if the Qualified Substitute Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a Minimum Mortgage Rate not less than the
Minimum Mortgage Rate of the Deleted Mortgage Loan, (v) if the Qualified
Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have a Gross
Margin equal to or greater than the Gross Margin of the Deleted Mortgage Loan,
(vi) if the Qualified Substitute Mortgage Loan is an Adjustable-Rate Mortgage
Loan, have a next Adjustment Date not more than two months later than the next
Adjustment Date on the Deleted Mortgage Loan, (vii) have a remaining term to
maturity not greater than (and not more than one year less than) that of the
Deleted Mortgage Loan, (viii) be current as of the date of substitution, (ix)
have 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, (x) have
a
risk grading determined by the Originator at least equal to the risk grading
assigned on the Deleted Mortgage Loan, (xi) have been underwritten or
reunderwritten by the Originator in accordance with the same underwriting
criteria and guidelines as the Deleted Mortgage Loan, (xii) be a first lien
mortgage loan if the Deleted Mortgage Loan is a first lien mortgage loan and
(xiii) conform to each representation and warranty set forth in Section 3.01
of
the Mortgage Loan Purchase Agreement or assigned to the Depositor pursuant
to
the Assignment Agreement applicable to the Deleted Mortgage Loan. In the event
that one or more mortgage loans are substituted for one or more Deleted Mortgage
Loans, the amounts described in clause (i) hereof shall be determined on the
basis of aggregate Stated Principal Balance, the Mortgage Rates described in
clause (ii) hereof shall be satisfied for each such mortgage loan, the risk
gradings described in clause (x) hereof shall be satisfied as to each such
mortgage loan, the terms described in clause (vii) hereof shall be determined
on
the basis of weighted average remaining term to maturity (provided that no
such
mortgage loan may have a remaining term to maturity longer than the Deleted
Mortgage Loan), the Loan-to-Value Ratios described in clause (ix) 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 (xii) hereof must be satisfied as to each Qualified Substitute Mortgage
Loan or in the aggregate, as the case may be. With respect to an Originator,
a
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
the related Master Agreement which must, on the date of such substitution
conform to the terms set forth in the related Master Agreement.
“Rating
Agency or Rating Agencies”: Xxxxx’x, S&P and Fitch, or their successors. If
such agencies or their successors are no longer in existence, “Rating Agencies”
shall be such nationally recognized statistical rating agencies, or other
comparable Persons, designated by the Depositor, notice of which designation
shall be given to the Trustee and the Master Servicer.
“Realized
Loss”: With respect to any Liquidated Mortgage Loan, the amount of loss realized
equal to the portion of the Stated Principal Balance remaining unpaid after
application of all Net Liquidation Proceeds in respect of such Mortgage Loan.
If
the related Servicer receives Subsequent Recoveries with respect to any Mortgage
Loan, the amount of the Realized Loss with respect to that Mortgage Loan will
be
reduced to the extent such recoveries are applied to principal distributions
on
any Distribution Date.
“Reconstitution
Agreement”: Any of the reconstitution agreements among the Seller, the Depositor
and the related Servicer (other than Ocwen) and acknowledged by the Master
Servicer and the Trustee, reconstituting the related Servicing
Agreement.
“Record
Date”: With respect to (i) the Floating Rate Certificates, the Close of Business
on the Business Day immediately preceding the related Distribution Date;
provided, however, that following the date on which Definitive Certificates
for
any of the Floating Rate Certificates are available pursuant to Section 5.02,
the Record Date for such Certificates that are Definitive Certificates shall
be
the last Business Day of the calendar month preceding the month in which the
related Distribution Date occurs and (ii) the Class P Certificates, the Class
C
Certificates and the Residual Certificates, the Close of Business on the last
Business Day of the calendar month preceding the month in which the related
Distribution Date occurs.
“Reference
Banks”: Those banks (i) with an established place of business in London,
England, (ii) not controlling, under the control of or under common control
with
the Originator, the Master Servicer, the Servicer or any Affiliate thereof
and
(iii) which have been designated as such by the Trust Administrator, after
consultation with the Depositor; provided, however, that if fewer than two
of
such banks provide a LIBOR rate, then any leading banks selected by the Trust
Administrator after consultation with the Depositor which are engaged in
transactions in United States dollar deposits in the international Eurocurrency
market.
“Refinanced
Mortgage Loan”: A Mortgage Loan the proceeds of which were not used to purchase
the related Mortgaged Property.
“Regular
Certificate”: Any of the Floating Rate Certificates, Class C Certificates or
Class P Certificates.
“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.
“Relevant
Servicing Criteria”: The Servicing Criteria applicable to the various parties,
as set forth on Exhibit O attached hereto. For clarification purposes, multiple
parties can have responsibility for the same Relevant Servicing
Criteria.
“Relief
Act”: The Servicemembers Civil Relief Act, or any state law providing for
similar relief.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date, for any Mortgage
Loan with respect to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended Due Period as a result of the
application of the Relief Act, the amount by which (i) interest collectible
on
such Mortgage Loan during such Due Period is less than (ii) one month’s interest
on the Stated Principal Balance of such Mortgage Loan at the Mortgage Rate
for
such Mortgage Loan before giving effect to the application of the Relief
Act.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
“REMIC
1”: The segregated pool of assets subject hereto, constituting the primary trust
created hereby and to be administered hereunder, with respect to which a REMIC
election is to be made consisting of: (i) such Mortgage Loans as from time
to
time are subject to this Agreement, together with the Mortgage Files relating
thereto, and together with all collections thereon and proceeds thereof, (ii)
any REO Property, together with all collections thereon and proceeds thereof,
(iii) the Trustee’s rights with respect to the Mortgage Loans under all
insurance policies, required to be maintained pursuant to this Agreement and
any
proceeds thereof, (iv) the Depositor’s rights under the Mortgage Loan Purchase
Agreement and the Assignment Agreements (including any security interest created
thereby) and (v) the Collection Account, the Custodial Accounts, the
Distribution Account (subject to the last sentence of this definition) and
any
REO Account and such assets that are deposited therein from time to time and
any
investments thereof, together with any and all income, proceeds and payments
with respect thereto. Notwithstanding the foregoing, however, a REMIC election
will not be made with respect to the Net WAC Rate Carryover Reserve Account,
the
Basis Risk Cap Agreement, the Interest Rate Cap Agreement, the Cap Account,
the
Cap Allocation Agreement, any Servicer Prepayment Charge Payment Amounts, the
Swap Account, the Supplemental Interest Trust or the Interest Rate Swap
Agreement.
“REMIC
1
Regular Interests”: Any of the separate non-certificated beneficial ownership
interests in REMIC 1 issued hereunder and designated as a “regular interest” in
REMIC 1. Each REMIC 1 Regular Interest shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
“REMIC
2”: The segregated pool of assets consisting of all of the REMIC 1 Regular
Interests and conveyed in trust to the Trustee, for the benefit of REMIC 3,
as
holder of the REMIC 2 Regular Interests, and the Class R Certificateholders,
as
Holders of the Class R-2 Interest, pursuant to Article II hereunder, and all
amounts deposited therein, with respect to which a separate REMIC election
is to
be made.
“REMIC
2
Interest Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated Principal Balance
of
the Mortgage Loans and related REO Properties then outstanding and (ii) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest LTAA
minus
the Marker Rate, divided by (b) 12.
“REMIC
2
Overcollateralization Target Amount”: 1.00% of the Overcollateralization Target
Amount.
“REMIC
2
Overcollateralization Amount”: With respect to any date of determination, (i)
1.00% of the aggregate Uncertificated Principal Balance of the REMIC 2 Regular
Interests (other than REMIC 2 Regular Interest LTP) minus (ii) the aggregate
Uncertificated Principal Balance of REMIC 2 Regular Interest LTIA1, REMIC 2
Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTAII3, REMIC 2 Regular Interest LTAII4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8A, REMIC 2 Regular
Interest LTM8B, REMIC 2 Regular Interest LTM9 and REMIC 2 Regular Interest
LTM10, in each case as of such date of determination.
“REMIC
2
Principal Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to the product of (i) the aggregate Stated Principal Balance of
the
Mortgage Loans and related REO Properties then outstanding and (ii) 1 minus
a
fraction, the numerator of which is two times the aggregate Uncertificated
Principal Balance of REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest
LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular Interest LTAII3, REMIC
2 Regular Interest LTAII4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular
Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4,
REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular
Interest LTM7, REMIC 2 Regular Interest LTM8A, REMIC 2 Regular Interest LTM8B,
REMIC 2 Regular Interest LTM9 and REMIC 2 Regular Interest LTM10 and the
denominator of which is the aggregate Uncertificated Principal Balance of REMIC
2 Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest LTAII3, REMIC 2 Regular Interest
LTAII4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC
2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8A, REMIC 2 Regular Interest LTM8B, REMIC 2 Regular Interest
LTM9, REMIC 2 Regular Interest LTM10 and REMIC 2 Regular Interest
LTZZ.
“REMIC
2
Regular Interests”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. Each REMIC 2 Regular Interest shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto. The following is
a
list of each of the REMIC 2 Regular Interests: REMIC 2 Regular Interest LTAA,
REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest LTAII3, REMIC 2 Regular Interest
LTAII4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC
2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8A, REMIC 2 Regular Interest LTM8B, REMIC 2 Regular Interest
LTM9, REMIC 2 Regular Interest LTM10, REMIC 2 Regular Interest LTZZ, REMIC
2
Regular Interest LTP and REMIC 2 Regular Interest LTIO.
“REMIC
3”: The segregated pool of assets consisting of all of the REMIC 2 Regular
Interests conveyed in trust to the Trustee, for the benefit of the Holders
of
the Regular Certificates (other than the Class C Certificates or the Class
P
Certificates), the Class C Interest, the Class P Interest, the Class IO Interest
and the Class R Certificates (in respect of the Class R-3 Interest), pursuant
to
Article II hereunder, and all amounts deposited therein, with respect to which
a
separate REMIC election is to be made.
“REMIC
4”: The segregated pool of assets consisting of the Class C Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class C Certificates
and the Class R-X Certificates (in respect of the Class R-4 Interest), pursuant
to Article II hereunder, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
“REMIC
5”: The segregated pool of assets consisting of the Class P Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class P Certificates
and the Class R-X Certificates (in respect of the Class R-5 Interest), pursuant
to Article II hereunder, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
“REMIC
6”: The segregated pool of assets consisting of the Class IO Interest conveyed
in trust to the Trustee, for the benefit of the Holders of the REMIC 6 Regular
Interest SWAP IO and the Class R-X Certificates (in respect of the Class R-6
Interest), pursuant to Article II hereunder, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
Provisions”: Provisions of the federal income tax law relating to real estate
mortgage investment conduits which appear at Section 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
and rulings promulgated thereunder, as the foregoing may be in effect from
time
to time.
“REMIC
Regular Interests”: The REMIC 1 Regular Interests, the REMIC 2 Regular
Interests, the Class C Interest, the Class P Interest and the Class IO
Interest.
“Remittance
Report”: A report prepared by the Servicer and delivered to the Master Servicer
pursuant to Section 4.04 (in the case of Ocwen) or pursuant to the related
Servicing Agreement (in the case of each Servicer other than
Ocwen).
“Rents
from Real Property”: With respect to any REO Property, gross income of the
character described in Section 856(d) of the Code.
“REO
Account”: The account or accounts maintained by the Servicer in respect of an
REO Property pursuant to Section 3.23 (in the case of Ocwen) or pursuant to
the
related Servicing Agreement (in the case of each Servicer other than
Ocwen).
“REO
Disposition”: The sale or other disposition of an REO Property on behalf of the
Trust Fund.
“REO
Imputed Interest”: As to any REO Property, for any calendar month during which
such REO Property was at any time part of the Trust Fund, one month’s interest
at the applicable Net Mortgage Rate on the Stated Principal Balance of such
REO
Property (or, in the case of the first such calendar month, of the related
Mortgage Loan if appropriate) as of the Close of Business on the Distribution
Date in such calendar month.
“REO
Principal Amortization”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts received in
respect of such REO Property during such calendar month, whether in the form
of
rental income, sale proceeds (including, without limitation, that portion of
the
Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 10.01 that is allocable to such
REO
Property) or otherwise, net of any portion of such amounts (i) payable pursuant
to Section 3.23 in respect of the proper operation, management and maintenance
of such REO Property or (ii) payable or reimbursable to the Servicer pursuant
to
Section 3.23 (in the case of Ocwen) or the related Servicing Agreement (in
the
case of each Servicer other than Ocwen) for unpaid Servicing Fees in respect
of
the related Mortgage Loan and unreimbursed Servicing Advances and Advances
in
respect of such REO Property or the related Mortgage Loan, over (b) the REO
Imputed Interest in respect of such REO Property for such calendar
month.
“REO
Property”: A Mortgaged Property acquired by the related Servicer on behalf of
the Trust Fund through foreclosure or deed-in-lieu of foreclosure, as described
in Section 3.23 or the related Servicing Agreement.
“Reportable
Event”: The meaning set forth in Section 4.05(b)(ii).
“Reporting
Servicer”: The meaning set forth in Section 4.05(a)(iv)(A).
“Request
for Release”: A release signed by a Servicing Officer, in the form of Exhibit E
attached hereto.
“Reserve
Interest Rate”: With respect to any Interest Determination Date, the rate per
annum that the Trust Administrator determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of 1/16 of
1%)
of the one-month United States dollar lending rates which banks in The City
of
New York selected by the Trust Administrator are quoting on the relevant
Interest Determination Date to the principal London offices of leading banks
in
the London interbank market or (ii) in the event that the Trust Administrator
can determine no such arithmetic mean, in the case of any Interest Determination
Date after the initial Interest Determination Date, the lowest one-month United
States dollar lending rate which such New York banks selected by the Trust
Administrator are quoting on such Interest Determination Date to leading
European banks.
“Residential
Dwelling”: Any one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a
Xxxxxx Xxx eligible condominium project, (iv) a manufactured home, or (v) a
detached one-family dwelling in a planned unit development, none of which is
a
co-operative or mobile home.
“Residual
Certificate”: The Class R Certificates and the Class R-X
Certificates.
“Residual
Interest”: The sole class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
“Responsible
Officer”: When used with respect to the Trustee or the Trust Administrator, any
director, any vice president, any assistant vice president, the Secretary,
any
assistant secretary, the Treasurer, any assistant treasurer or any other officer
of the Trustee or the Trust Administrator, as applicable, customarily performing
functions similar to those performed by any of the above designated officers
and, with respect to a particular matter, to whom such matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject.
“S&P”:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or its successor in interest.
“Xxxxxxxx-Xxxxx
Act”: The Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the
Commission promulgated thereunder (including any interpretations thereof by
the
Commission’s staff).
“Xxxxxxxx-Xxxxx
Certification”: A written certification signed by an officer of the Master
Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act, and (ii) Exchange Act
Rules 13a-14(d) and 15d-14(d), as in effect from time to time; provided that
if,
after the Closing Date (a) the Xxxxxxxx-Xxxxx Act is amended, (b) the Rules
referred to in clause (ii) are modified or superseded by any subsequent
statement, rule or regulation of the Commission or any statement of a division
thereof, or (c) any future releases, rules and regulations are published by
the
Commission from time to time pursuant to the Xxxxxxxx-Xxxxx Act, which in any
such case affects the form or substance of the required certification and
results in the required certification being, in the reasonable judgment of
the
Master Servicer, materially more onerous that then form of the required
certification as of the Closing Date, the Xxxxxxxx-Xxxxx Certification shall
be
as agreed to by the Master Servicer and the Depositor following a negotiation
in
good faith to determine how to comply with any such new
requirements.
“Securities
Act”: The Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Seller”:
Greenwich Capital Financial Products, Inc., a Delaware corporation, in its
capacity as Seller under the Assignment Agreement.
“Senior
Certificate”: Any one of the Class I-A-1 Certificates, the Class II-A-1
Certificates, the Class II-A-2 Certificates, the Class II-A-3 Certificates
or
the Class II-A-4 Certificates.
“Senior
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of the Group I Senior
Principal Distribution Amount and
the
Group II Senior Principal Distribution Amount.
“Servicer”:
Any of Ocwen Loan Servicing, LLC, Central Mortgage Company, GMAC Mortgage
Corporation, Xxxxx Fargo Bank, N.A. or Countrywide Home Loans Servicing LP,
or
any successor Servicer appointed as herein provided or as provided in the
related Servicing Agreement, in its capacity as a Servicer hereunder.
“Servicer
Certification”: As defined in Section 4.05(b)(iii).
“Servicer
Event of Termination”: One or more of the events described in Section
7.01.
“Servicer
Prepayment Charge Payment Amount”: The amounts payable by Ocwen in respect of
any waived Prepayment Charges pursuant to Section 2.05 or Section
3.01.
“Servicer
Remittance Date”: With
respect to any Distribution Date and Ocwen, the Business Day immediately
preceding such Distribution Date.
With
respect to any Distribution Date and any other Servicer, the date set forth
in
the related Servicing Agreement.
“Servicing
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“Servicing
Advances”: With respect to Ocwen, all customary, reasonable and necessary “out
of pocket” costs and expenses (including reasonable attorneys’ fees and
expenses) incurred by Ocwen in the performance of its servicing obligations,
including, but not limited to, the cost of (i) the preservation, restoration,
inspection and protection of the Mortgaged Property, (ii) any enforcement or
judicial proceedings, including foreclosures, (iii) obtaining any legal
documentation required to be included in the Mortgage File and/or correcting
any
outstanding title issues (i.e. any lien or encumbrance on the Mortgaged Property
that prevents the effective enforcement of the intended lien position)
reasonably necessary for Ocwen to perform its obligations under this Agreement,
(iv) the management and liquidation of the REO Property, (v) compliance with
the
obligations under Sections 3.01, 3.09, 3.13, 3.14, 3.16, and 3.23 and (vi)
refunding to any Mortgagor such prepaid origination fees and/or finance charges
that are subject to reimbursement upon a Principal Prepayment of the related
Mortgage Loan to the extent such reimbursement is required by applicable law.
Servicing Advances also include any reasonable “out-of-pocket” costs and
expenses (including legal fees) incurred by Ocwen in connection with executing
and recording instruments of satisfaction, deeds of reconveyance or Assignments
of Mortgage in connection with any foreclosure in respect of any Mortgage Loan
to the extent not recovered from the related Mortgagor or otherwise payable
under this Agreement. Ocwen shall not be required to make any Servicing Advance
that would be a Nonrecoverable Advance.
With
respect to each Servicer other than Ocwen, “Servicing Advances” shall have the
meaning set forth in the related Servicing Agreement.
“Servicing
Agreement”: Each of the Servicing Agreements, between the Seller, as purchaser,
and the related Servicer (other than Ocwen), as servicer, as reconstituted
by
the related Reconstitution Agreement, as the same may be amended from time
to
time.
“Servicing
Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation
AB, as such may be amended from time to time.
“Servicing
Fee”: With respect to each Mortgage Loan, the amount of the annual fee paid to
the Servicer, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate (without regard to
the
words “:per annum”) and (b) the outstanding principal balance of such Mortgage
Loan. Such fee shall be payable monthly, computed on the basis of the same
principal amount and period respecting which any related interest payment on
a
Mortgage Loan is received. The obligation for payment of the Servicing Fee
is
limited to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds) of
such Monthly Payment collected by the Servicer, or as otherwise provided under
Section 3.11.
“Servicing
Fee Rate”: With respect to Ocwen, 0.500% per annum. With respect to each
Servicer other than Ocwen, the rate set forth in the related Servicing
Agreement.
“Servicing
Officer”: Any officer of a Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such Servicer
to
the Master Servicer, the Trust Administrator, the Trustee and the Depositor
on
the Closing Date, as such list may from time to time be amended. With respect
to
the Master Servicer, any officer of the Master Servicer involved in or
responsible for, the administration and master servicing of the Mortgage Loans
whose name appears on a list of master Servicing Officers furnished by the
Master Servicer to the Trustee, the Trust Administrator and the Depositor upon
request, as such list may from time to time be amended.
“Servicing
Standard”: Shall mean the standards set forth in Section 3.01.
“Servicing
Transfer Costs”: Shall mean all reasonable out-of-pocket costs and expenses
incurred by the Trustee or the Master Servicer in connection with the transfer
of servicing from a predecessor servicer, including, without limitation, any
reasonable costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Trustee or the Master Servicer to correct any
errors or insufficiencies in the servicing data or otherwise to enable the
Trustee or the Master Servicer (or any successor servicer appointed pursuant
to
Section 7.02) to service the Mortgage Loans properly and effectively and any
fees associated with MERS.
“Startup
Day”: As defined in Section 9.01(b) hereof.
“Stated
Principal Balance”: With respect to any Mortgage Loan: (a) as of any date of
determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the outstanding principal balance of such Mortgage Loan
as
of the Cut-off Date as shown in the Mortgage Loan Schedule, minus the sum of
(i)
the principal portion of each Monthly Payment due on a Due Date subsequent
to
the Cut-off Date to the extent received from the Mortgagor or advanced by the
related Servicer and distributed pursuant to Section 4.01 on or before such
date
of determination, (ii) all Principal Prepayments received after the Cut-off
Date
to the extent distributed pursuant to Section 4.01 on or before such date of
determination, (iii) all Liquidation Proceeds and Insurance Proceeds to the
extent distributed pursuant to Section 4.01 on or before such date of
determination, and (iv) any Realized Loss incurred with respect thereto as
a
result of a Deficient Valuation made during or prior to the Due Period for
the
most recent Distribution Date coinciding with or preceding such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such Mortgage Loan would be distributed,
zero.
With respect to any REO Property: (a) as of any date of determination up to
but
not including the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, an
amount (not less than zero) equal to the Stated Principal Balance of the related
Mortgage Loan as of the date on which such REO Property was acquired on behalf
of the Trust Fund, minus the aggregate amount of REO Principal Amortization
in
respect of such REO Property for all previously ended calendar months, to the
extent distributed pursuant to Section 4.01 on or before such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed,
zero.
“Stepdown
Date”: The earlier to occur of (i) the Distribution Date following the
Distribution Date on which the aggregate Certificate Principal Balance of the
Senior Certificates has been reduced to zero and (ii) the later to occur of
(x)
the Distribution Date occurring in March 2010 and (y) the first Distribution
Date on which the Credit Enhancement Percentage (calculated for this purpose
only after taking into account payments of principal on the Mortgage Loans
but
prior to distribution of the Group I Principal Distribution Amount and the
Group
II Principal Distribution Amount to the Certificates then entitled to
distributions of principal on such Distribution Date) is equal to or greater
than 39.30%.
“Subcontractor”:
Any vendor, subcontractor or other Person that is not responsible for the
overall servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a Sub-Servicer of any Servicer),
the Master Servicer, the Trustee, any Custodian or the Trust
Administrator.
“Sub-Servicer”:
Any Person with which a Servicer has entered into a Sub- Servicing Agreement
and
which meets the qualifications of a Sub-Servicer pursuant to Section 3.02
(in
the
case of Ocwen) or pursunt to the related Servicing Agreement (in the case of
each Servicer other than Ocwen).
“Sub-Servicing
Account”: An account established by a Sub-Servicer which meets the requirements
set forth in Section 3.08 (in the case of Ocwen) or the requirements of the
related Servicing Agreement (in the case of each Servicer other than Ocwen)
and
is otherwise acceptable to the related Servicer.
“Sub-Servicing
Agreement”: The written contract between a Servicer and a Sub-Servicer relating
to servicing and administration of certain Mortgage Loans as provided in Section
3.02 (in the case of Ocwen) or pursunt to the related Servicing Agreement (in
the case of each Servicer other than Ocwen).
“Subsequent
Recoveries”: As of any Distribution Date, amounts received by the related
Servicer (net of any related expenses permitted to be reimbursed) pursuant
to
Section 3.11 (in the case of Ocwen) or pursunt to the related Servicing
Agreement (in the case of each Servicer other than Ocwen) specifically related
to a Mortgage Loan that was the subject of a liquidation or an REO Disposition
prior to the related Prepayment Period that resulted in a Realized
Loss.
“Substitution
Adjustment”: As defined in Section 2.03(d) hereof.
“Supplemental
Interest Trust”: As defined in Section 4.10(a).
“Supplemental
Interest Trust Trustee”: Xxxxx Fargo Bank, N.A., a national banking association,
not in its individual capacity but solely in its capacity as supplemental
interest Trust Trustee, and any successor thereto.
“Swap
Account”: The account or accounts created and maintained pursuant to Section
4.10. The Swap Account must be an Eligible Account.
“Swap
Collateral Account”: The account or accounts created and maintained pursuant to
Section 4.14.
“Swap
Credit Support Annex”: The credit support annex, dated the Closing Date, between
the Supplemental Interest Trust Trustee on behalf of the Supplement Interest
Trust and the Interest Rate Swap Provider, which is annexed to and forms part
of
the Interest Rate Swap Agreement.
“Swap
Expense Fee Rate”: For any Distribution Date, is an amount expressed as a per
annum rate, equal to the sum of (a) the product of (i) the Net Swap Payment
made
to the Swap Provider divided by the aggregate Principal Balance of the Mortgage
Loans as of the first day of the related Due Period or, in the case of the
first
Distribution Date, the Cut-off Date, adjusted, except in the case of the first
Distribution Date, to reflect unscheduled principal payments made thereafter
during the Prepayment Period that includes such first day of the related Due
Period and (ii) 12 and (b) the product of (i) any Swap Termination Payment
(other than a Swap Termination Payment resulting from a Swap Provider Trigger
Event) made to the Swap Provider divided by the aggregate Principal Balance
of
the Mortgage Loans as of the first day of the related Due Period or, in the
case
of the first Distribution Date, the Cut-off Date, adjusted, except in the case
of the first Distribution Date, to reflect unscheduled principal payments made
thereafter during the Prepayment Period that includes such first day of the
related Due Period and (ii) 12.
“Swap
Interest Shortfall Amount”: Any shortfall of interest with respect to any Class
of Certificates resulting from the application of the Net WAC Rate due to a
discrepancy between the Uncertificated Notional Amount of the REMIC 6 Regular
Interest SWAP IO and the scheduled notional amount.
“Swap
LIBOR”:
A per annum rate equal to the floating rate payable by the Swap Provider under
the Swap Agreement.
“Swap
Provider”: The swap provider under the Interest Rate Swap Agreement. Initially,
the swap provider shall be Bear Xxxxxxx Financial Products Inc.
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect to
which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined in
the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event under
the
Interest Rate Swap Agreement with respect to which the Swap Provider is the
sole
Affected Party.
“Swap
Termination Payment”: The payment due to either party under the Interest Rate
Swap Agreement upon the early termination of the Interest Rate Swap
Agreement.
“Tax
Matters Person”: The tax matters person appointed pursuant to Section 9.01(e)
hereof.
“Tax
Returns”: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of the REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed
by
the Trust Administrator on behalf of each REMIC, together with any and all
other
information reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
“Termination
Price”: As defined in Section 10.01(a) hereof.
“Terminator”:
As defined in Section 10.01(a) hereof.
“Trigger
Event”: A Trigger Event is in effect with respect to any Distribution Date on or
after the Stepdown Date if:
(i) the
Delinquency Percentage exceeds the applicable percentages 40.71%
of
the Credit Enhancement Percentage
for the
prior Distribution Date:
or
(ii) the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Due Period (reduced by the aggregate amount of
Subsequent Recoveries received since the Cut-off Date through the last day
of
the related Due Period) divided by the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Cut-off Date (the “Realized Loss Percentage”), exceeds
the applicable percentages set forth below with respect to such Distribution
Date:
|
Distribution
Date Occurring In
|
Percentage
|
|
March
2009 through February 2010
|
1.25%
for the first month, plus an additional 1/12th
of
1.50% for each month thereafter.
|
|
March
2010 through February 2011
|
2.75%
for the first month, plus an additional 1/12th
of
1.60% for each month thereafter.
|
|
March
2011 through February 2012
|
4.35%
for the first month, plus an additional 1/12th
of
1.30% for each month thereafter.
|
|
March
2012 through February 2013
|
5.65%
for the first month, plus an additional 1/12th
of
0.80% for each month thereafter.
|
|
March
2013 through February 2014
|
6.45%
for the first month, plus an additional 1/12th
of
0.10% for each month thereafter.
|
|
March
2014 and thereafter
|
6.55%
|
“Trust”:
Soundview Home Loan Trust 2007-1, the trust created hereunder.
“Trust
Administrator”: Xxxxx Fargo Bank, N.A. or any successor in interest, or any
successor trust administrator appointed as herein provided.
“Trust
Fund”: All of the assets of the Trust, which is the trust created hereunder
consisting of REMIC 1, REMIC 2, REMIC 3, REMIC 4, REMIC 5, REMIC 6, any Servicer
Prepayment Charge Payment Amounts, the Net WAC Rate Carryover Reserve Account,
the Swap Account, the Supplemental Interest Trust, the Interest Rate Swap
Agreement, the Basis Risk Cap Agreement, distributions made to the Trust
Administrator by the Cap Trustee pursuant to the Interest Rate Cap Agreement,
the Cap Allocation Agreement and the Cap Account.
“Trustee”:
Deutsche Bank National Trust Company, a national banking association, or any
successor trustee appointed as herein provided.
“Trustee
Compensation”: Such compensation, if any, as set forth in the separate fee
schedule between the Trustee and the Depositor, which compensation shall be
payable to the Trustee on each Distribution Date pursuant to Section 8.05 as
compensation for all services rendered by it in the execution of the trust
hereby created and in the exercise and performance of any of the powers and
duties of the Trustee hereunder.
“Uncertificated
Accrued Interest”: With respect to each REMIC Regular Interest on each
Distribution Date, an amount equal to one month’s interest at the related
Uncertificated REMIC Pass-Through Rate on the Uncertificated Principal Balance
of such REMIC Regular Interest. In each case, Uncertificated Accrued Interest
will be reduced by any Net Prepayment Interest Shortfalls, Relief Act Interest
Shortfalls (allocated to such REMIC Regular Interests based on their respective
entitlements to interest irrespective of any Net Prepayment Interest Shortfalls
and Relief Act Interest Shortfalls for such Distribution Date).
“Uncertificated
Notional Amount”: With respect to REMIC 2 Regular Interest LTIO and each
Distribution Date listed below, the aggregate Uncertificated Principal Balance
of the REMIC 1 Regular Interests ending with the designation “A” listed
below:
|
Distribution
Date
|
REMIC
1 Regular Interests
|
|
1st
through 10th
|
I-1-A
through X-00-X
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through X-00-X
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through X-00-X
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through X-00-X
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through I-51-A
|
|
19
|
I-10-A
through I-51-A
|
|
20
|
I-11-A
through I-51-A
|
|
21
|
I-12-A
through I-51-A
|
|
22
|
I-13-A
through I-51-A
|
|
23
|
I-14-A
through I-51-A
|
|
24
|
I-15-A
through I-51-A
|
|
25
|
I-16-A
through I-51-A
|
|
26
|
I-17-A
through I-51-A
|
|
27
|
I-18-A
through I-51-A
|
|
28
|
I-19-A
through I-51-A
|
|
29
|
I-20-A
through I-51-A
|
|
30
|
I-21-A
through I-51-A
|
|
31
|
I-22-A
through I-51-A
|
|
32
|
I-23-A
through I-51-A
|
|
33
|
I-24-A
through I-51-A
|
|
34
|
I-25-A
through I-51-A
|
|
35
|
I-26-A
through I-51-A
|
|
36
|
I-27-A
through I-51-A
|
|
37
|
I-28-A
through I-51-A
|
|
38
|
I-29-A
through I-51-A
|
|
39
|
I-30-A
through I-51-A
|
|
40
|
I-31-A
through I-51-A
|
|
41
|
I-32-A
through I-51-A
|
|
42
|
I-33-A
through I-51-A
|
|
43
|
I-34-A
through I-51-A
|
|
44
|
I-35-A
through I-51-A
|
|
45
|
I-36-A
through I-51-A
|
|
46
|
I-37-A
through I-51-A
|
|
47
|
I-38-A
through I-51-A
|
|
48
|
I-39-A
through I-51-A
|
|
49
|
I-40-A
through I-51-A
|
|
50
|
I-41-A
through I-51-A
|
|
51
|
I-42-A
through I-51-A
|
|
52
|
I-43-A
through I-51-A
|
|
53
|
I-44-A
through I-51-A
|
|
54
|
I-45-A
through I-51-A
|
|
55
|
I-46-A
through I-51-A
|
|
56
|
I-47-A
through I-51-A
|
|
57
|
I-48-A
through I-51-A
|
|
58
|
I-49-A
through I-51-A
|
|
59
|
I-50-A
and I-51-A
|
|
60
|
I-51-A
|
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC 2 Regular Interest
LTIO.
“Uncertificated
Principal Balance”: With respect to each REMIC Regular Interest, the amount of
such REMIC Regular Interest outstanding as of any date of determination. As
of
the Closing Date, the Uncertificated Principal Balance of each REMIC Regular
Interest shall equal the amount set forth in the Preliminary Statement hereto
as
its initial Uncertificated Principal Balance. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC Regular Interest shall be reduced
by all distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 4.08 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 4.08, and the Uncertificated Principal Balance
of
REMIC 2 Regular Interest LTZZ shall be increased by interest deferrals as
provided in Section 4.08. With respect to the Class C Interest as of any date
of
determination, an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balance of the REMIC 2 Regular Interests over (B)
the
then aggregate Certificate Principal Balance of the Senior Certificates, the
Mezzanine Certificates and the Class P Certificates then outstanding. The
Uncertificated Principal Balance of each REMIC Regular Interest that has an
Uncertificated Principal Balance shall never be less than zero.
“Uncertificated
REMIC Pass-Through Rate”: The Uncertificated REMIC 1 Pass-Through Rate or the
Uncertificated REMIC 2 Pass-Through Rate, as applicable.
“Uncertificated
REMIC 1 Pass-Through Rate”: With respect to REMIC 1 Regular Interest I and REMIC
1 Regular Interest P, a per annum rate equal to the weighted average of the
Adjusted Net Mortgage Rates of the Mortgage Loans. With respect to each REMIC
1
Regular Interest ending with the designation “A”, a per annum rate equal to the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans
multiplied by 2, subject to a maximum rate of 10.700%. With respect to each
REMIC 1 Regular Interest ending with the designation “B”, the greater of (x) a
per annum rate equal to the excess, if any, of (i) 2 multiplied by the weighted
average of the Adjusted Net Mortgage Rates of the Mortgage Loans over (ii)
10.700% and (y) 0.00%.
“Uncertificated
REMIC 2 Pass-Through Rate”:
With
respect to REMIC 2 Regular Interest LTAA, REMIC
2
Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC 2 Regular Interest
LTIIA4, REMIC
2
Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest
LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2
Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest
LTM8A, REMIC 2 Regular Interest LTM8B, REMIC 2 Regular Interest LTM9, REMIC
2
Regular Interest LTM10, REMIC 2 Regular Interest LTZZ and REMIC 2 Regular
Interest LTP, a
per
annum rate (but not less than zero) equal to the weighted average of (v) with
respect to REMIC 1 Regular Interest I and REMIC 1 Regular Interest P, the
Uncertificated REMIC 1 Pass-Through Rates for such REMIC 1 Regular Interests
for
each such Distribution Date, (w) with respect to REMIC 1 Regular Interests
ending with the designation “B”, the weighted average of the Uncertificated
REMIC 1 Pass-Through Rates for such REMIC 1 Regular Interests, weighted on
the
basis of the Uncertificated Principal Balance of such REMIC 1 Regular Interests
for each such Distribution Date and (x) with respect to REMIC 1 Regular
Interests ending with the designation “A”, for each Distribution Date listed
below, the weighted average of the rates listed below for each such REMIC 1
Regular Interest listed below, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC 1 Regular Interest for each such
Distribution Date:
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
|
1st
through 9h
|
I-1-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
10
|
I-1-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
11
|
I-2-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
12
|
I-3-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
13
|
I-4-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
14
|
I-5-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
15
|
I-6-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
16
|
I-7-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
17
|
I-8-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
18
|
I-9-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
19
|
I-10-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
20
|
I-11-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
21
|
I-12-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
22
|
I-13-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
23
|
I-14-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
24
|
I-15-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
25
|
I-16-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
26
|
I-17-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
27
|
I-18-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
28
|
I-19-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
29
|
I-20-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
30
|
I-21-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
31
|
I-22-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
32
|
I-23-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
33
|
I-24-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
34
|
I-25-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
35
|
I-26-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
36
|
I-27-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
37
|
I-28-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
38
|
I-29-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
39
|
I-30-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
40
|
I-31-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
41
|
I-32-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
42
|
I-33-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
43
|
I-34-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
44
|
I-35-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
45
|
I-36-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
46
|
I-37-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
47
|
I-38-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
48
|
I-39-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
49
|
I-40-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
50
|
I-41-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
51
|
I-42-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
52
|
I-43-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
53
|
I-44-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
54
|
I-45-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
55
|
I-46-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-45-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
56
|
I-47-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-46-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
57
|
I-48-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-47-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
58
|
I-49-A
through I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-48-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
59
|
I-50-A
and I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-49-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
60
|
I-51-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-54-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
With
respect to REMIC 2 Regular Interest LTIO, and (a) the first nine Distribution
Dates, the excess of (i) the weighted average of the Uncertificated REMIC 1
Pass-Through Rates for REMIC 1 Regular Interests ending with the designation
“A”
over (ii) the weighted average of the Uncertificated REMIC 1 Pass-Through Rates
for REMIC 1 Regular Interests ending with the designation “A”, and (b) the tenth
Distribution Date through the 60th
Distribution Date, the excess of (i) the weighted average of the Uncertificated
REMIC 1 Pass-Through Rates for REMIC 1 Regular Interests ending with the
designation “A” over (ii) 2 multiplied by Swap LIBOR, and (c) thereafter 0.00%.
“Uninsured
Cause”: Any cause of damage to a Mortgaged Property such that the complete
restoration of such property is not fully reimbursable by the hazard insurance
policies required to be maintained pursuant to Section 3.14.
“United
States Person” or “U.S. Person”: A citizen or resident of the United States, a
corporation, partnership (or other entity treated as a corporation or
partnership for United States federal income tax purposes) created or organized
in, or under the laws of, the United States, any state thereof, or the District
of Columbia (except in the case of a partnership, to the extent provided in
Treasury Regulations) provided that, for purposes solely of the restrictions
on
the transfer of Residual Certificates, no partnership or other entity treated
as
a partnership for United States federal income tax purposes shall be treated
as
a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation
for
United States federal income tax purposes are required by the applicable
operative agreement to be United States Persons, or an estate the income of
which from sources without the United States is includible in gross income
for
United States federal income tax purposes regardless of its connection with
the
conduct of a trade or business within the United States, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have authority
to control all substantial decisions of the trust. The term “United States”
shall have the meaning set forth in Section 7701 of the Code or successor
provisions.
“Unpaid
Interest Shortfall Amount”: With respect to the Floating Rate Certificates and
(i) the first Distribution Date, zero, and (ii) any Distribution Date after
the
first Distribution Date, the amount, if any, by which (a) the sum of (1) the
Monthly Interest Distributable Amount for such Class for the immediately
preceding Distribution Date and (2) the outstanding Unpaid Interest Shortfall
Amount, if any, for such Class for such preceding Distribution Date exceeds
(b)
the aggregate amount distributed on such Class in respect of interest pursuant
to clause (a) of this definition on such preceding Distribution Date, plus
interest on the amount of interest due but not distributed on the Certificates
of such Class on such preceding Distribution Date, to the extent permitted
by
law, at the Pass-Through Rate for such Class for the related Accrual
Period.
“Value”:
With respect to any Mortgaged Property, the lesser of (i) the value thereof
as
determined by an appraisal made for the originator of the Mortgage Loan at
the
time of origination of the Mortgage Loan by an appraiser who met the minimum
requirements of Xxxxxx Xxx and Xxxxxxx Mac and (ii) the purchase price paid
for
the related Mortgaged Property by the Mortgagor with the proceeds of the
Mortgage Loan.
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. At all times the Floating Rate Certificates and
the Class C Certificates shall have 98% of the Voting Rights (allocated among
the Holders of the Floating Rate Certificates and the Class C Certificates
in
proportion to the then outstanding Certificate Principal Balances of their
respective Certificates), the Class P Certificates shall have 1% of the Voting
Rights and the Residual Certificates shall have 1% of the Voting Rights. The
Voting Rights allocated to any Class of Certificates (other than the Class
P
Certificates and the Residual Certificates) shall be allocated among all Holders
of each such Class in proportion to the outstanding Certificate Principal
Balance of such Certificates and the Voting Rights allocated to the Class P
Certificates and the Residual Certificates shall be allocated among all Holders
of each such Class in proportion to such Holders’ respective Percentage
Interest; provided, however that when none of the Regular Certificates are
outstanding, 100% of the Voting Rights shall be allocated among Holders of
the
Residual Certificates in accordance with such Holders’ respective Percentage
Interests in the Certificates of such Class. The Class X and Class FL
Certificates shall have no Voting Rights.
| SECTION 1.02 |
Accounting.
|
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication
of
such functions.
| SECTION 1.03 |
Allocation
of Certain Interest Shortfalls.
|
For
purposes of calculating the amount of the Monthly Interest Distributable Amount
for the Floating Rate Certificates and the Class C Certificates for any
Distribution Date, (1) the aggregate amount of any Net Prepayment Interest
Shortfalls and any Relief Act Interest Shortfalls incurred in respect of the
Mortgage Loans for any Distribution Date shall be allocated first, among the
Class C Certificates on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate and,
thereafter, among the Floating Rate Certificates on a
pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
of
each such Certificate and (2) the aggregate amount of any Realized Losses and
Net WAC Rate Carryover Amounts shall be allocated among the Class C Certificates
on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 1 Regular Interests for any Distribution Date the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans shall be allocated first, to REMIC
1
Regular Interest I and to the REMIC 1 Regular Interests ending with the
designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC 1 Regular Interest, and then, to REMIC
1
Regular Interests ending with the designation “A”, pro rata based on, and to the
extent of, one month’s interest at the then applicable respective Uncertificated
REMIC 1 Pass-Through Rates on the respective Uncertificated Principal Balances
of each such REMIC 1 Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 2 Regular Interests for any Distribution Date, the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated among REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTIA1,
REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2
Regular Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular
Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3,
REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular
Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8A,
REMIC 2 Regular Interest LTM8B, REMIC 2 Regular Interest LTM9, REMIC 2 Regular
Interest LTM10 and REMIC 2 Regular Interest LTZZ pro
rata based
on,
and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 2 Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC 2 Regular Interest.
| SECTION 1.04 |
Rights
of the NIMS Insurer.
|
Each
of
the rights of the NIMS Insurer set forth in this Agreement shall exist so long
as (i) the NIMS Insurer has undertaken to guarantee certain payments of notes
issued pursuant to an Indenture and (ii) any series of notes issued pursuant
to
one or more Indentures remain outstanding or the NIMS Insurer is owed amounts
in
respect of its guarantee of payment on such notes; provided, however, the NIMS
Insurer shall not have any rights hereunder (except pursuant to Section 11.01
in
the case of clause (ii) below) so long as (i) the NIMS Insurer has not
undertaken to guarantee certain payments of notes issued pursuant to the
Indenture or (ii) any default has occurred and is continuing under the insurance
policy issued by the NIMS Insurer with respect to such notes. The Depositor
shall provide notice to each Servicer if a NIMS Insurer has been engaged, upon
the occurrence of a default under the insurance policy issued by the NIMS
Insurer and the termination of the NIMS Insurer.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
| SECTION 2.01 |
Conveyance
of Mortgage Loans.
|
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse for the benefit of the Certificateholders all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in and to (i) each Mortgage Loan identified on the
Mortgage Loan Schedule, including the related Cut-off Date Principal Balance,
all interest accruing thereon on and after the Cut-off Date and all collections
in respect of interest and principal due after the Cut-off Date; (ii) property
which secured each such Mortgage Loan and which has been acquired by foreclosure
or deed in lieu of foreclosure; (iii) its interest in any insurance policies
in
respect of the Mortgage Loans; (iv) the rights of the Depositor under the
Mortgage Loan Purchase Agreement and the Master Agreements (as assigned to
the
Depositor pursuant to the terms of the related Assignment Agreements), (v)
the
right
to receive any amounts payable under the Basis Risk Cap Agreement and the
Interest Rate Swap Agreement,
(vi)
payments made to the Cap Trustee by the Interest Rate Cap Provider and the
Cap
Account, (vii) all other assets included or to be included in the Trust Fund
and
(viii) all proceeds of any of the foregoing. Such assignment includes all
interest and principal due and collected by the Depositor or the Servicer after
the Cut-off Date with respect to the Mortgage Loans.
In
connection with such transfer and assignment, the Depositor, does hereby deliver
to, and deposit with, the Trustee (or the related Custodian on behalf of the
Trustee), the following documents or instruments with respect to each Mortgage
Loan so transferred and assigned (with respect to each Mortgage Loan, a
“Mortgage File”):
(iii) the
original Mortgage Note including any riders thereto, endorsed either (A) in
blank, in which case the Trustee shall cause the endorsement to be completed
or
(B) in the following form: “Pay to the order of Deutsche Bank National Trust
Company, as Trustee, without recourse” or with respect to any lost Mortgage
Note, an original Lost Note Affidavit stating that the original mortgage note
was lost, misplaced or destroyed, together with a copy of the related mortgage
note; provided, however, that such substitutions of Lost Note Affidavits for
original Mortgage Notes may occur only with respect to Mortgage Loans, the
aggregate Cut-off Date Principal Balance of which is less than or equal to
1.00%
of the Pool Balance as of the Cut-off Date;
(iv) the
original Mortgage (noting the presence of the MIN of the Mortgage Loan and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan
is
a MOM Loan), with evidence of recording thereon, and the original recorded
power
of attorney, if the Mortgage was executed pursuant to a power of attorney,
with
evidence of recording thereon or, if such Mortgage or power of attorney has
been
submitted for recording but has not been returned from the applicable public
recording office, has been lost or is not otherwise available, a copy of such
Mortgage or power of attorney, as the case may be, certified to be a true and
complete copy of the original submitted for recording;
(v) unless
the Mortgage Loan is registered on the MERS® System, an original Assignment, in
form and substance acceptable for recording. The Mortgage shall be assigned
either (A) in blank or (B) to “Deutsche Bank National Trust Company, as Trustee,
without recourse”;
(vi) an
original of any intervening assignment of Mortgage showing a complete chain
of
assignments (or to MERS if the Mortgage Loan is registered on the MERS® System
and noting the presence of MIN);
(vii) the
original or a certified copy of lender’s title insurance policy;
and
(viii) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any.
The
Depositor herewith also delivers to the Trustee an executed copy of the Mortgage
Loan Purchase Agreement, each Assignment Agreement and each Master
Agreement.
If
any of
the documents referred to in Section 2.01(ii), (iii) or (iv) above has as of
the
Closing Date been submitted for recording but either (x) has not been returned
from the applicable public recording office or (y) has been lost or such public
recording office has retained the original of such document, the obligations
of
the Depositor to deliver such documents shall be deemed to be satisfied upon
(1)
delivery to the Trustee (or the related Custodian on behalf of the Trustee)
no
later than the Closing Date, of a copy of each such document certified by the
related Originator in the case of (x) above or the applicable public recording
office in the case of (y) above to be a true and complete copy of the original
that was submitted for recording and (2) if such copy is certified by the
related Originator, delivery to the Trustee (or the related Custodian on behalf
of the Trustee) promptly upon receipt thereof of either the original or a copy
of such document certified by the applicable public recording office to be
a
true and complete copy of the original. If the original lender’s title insurance
policy, or a certified copy thereof, was not delivered pursuant to Section
2.01(v) above, the Depositor shall deliver or cause to be delivered to the
Trustee (or the related Custodian on behalf of the Trustee), the original or
a
copy of a written commitment or interim binder or preliminary report of title
issued by the title insurance or escrow company, with the original or a
certified copy thereof to be delivered to the Trustee (or the related Custodian
on behalf of the Trustee), promptly upon receipt thereof. Ocwen or the Depositor
shall deliver or cause to be delivered to the Trustee (or the related Custodian
on behalf of the Trustee) promptly upon receipt thereof any other documents
constituting a part of a Mortgage File received with respect to any Mortgage
Loan, including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File, the Trustee (or the related
Custodian on behalf of the Trustee) shall enforce the obligations of the Seller
under the Mortgage Loan Purchase Agreement or the Originator under the related
Master Agreement to cure such defect or deliver such missing document to the
Trustee (or the related Custodian on behalf of the Trustee) within 90 days.
If
the Seller or such Originator does not cure such defect or deliver such missing
document within such time period, the Trustee shall use commercially reasonable
efforts to enforce the obligations of the Seller or the related Originator,
as
applicable, to either repurchase or substitute for such Mortgage Loan in
accordance with Section 2.03; provided, however, that the Trustee shall not
be
under any obligation to take any action pursuant to this paragraph unless
directed by the Depositor and provided, further, the Depositor hereby agrees
to
assist the Trustee in enforcing any obligations of the Seller or the related
Originator, as applicable, to repurchase or substitute for a Mortgage Loan
which
has breached a representation or warranty under the Mortgage Loan Purchase
Agreement or the related Assignment Agreement. In connection with the foregoing,
it is understood that the Trustee shall have no duty to discover any such
defects except in the course of performing its review of the Mortgage Files
to
the extent set forth herein.
Except
with respect to any Mortgage Loan for which MERS is identified on the Mortgage,
the Trustee (upon receipt of notice from the related Custodian) shall enforce
the obligations of the Seller under the Mortgage Loan Purchase Agreement or
the
Originator under the related Master Agreement to cause the Assignments which
were delivered in blank to be completed and to record all Assignments referred
to in Section 2.01(iii) hereof and, to the extent necessary, in Section 2.01(iv)
hereof. The Trustee shall enforce the obligations of the Seller under the
Mortgage Loan Purchase Agreement or the Originator under the related Master
Agreement to deliver such assignments for recording within 180 days of the
Closing Date. In the event that any such Assignment is lost or returned
unrecorded because of a defect therein, the Trustee shall enforce the
obligations of the Seller under the Mortgage Loan Purchase Agreement or the
Originator under the related Master Agreement to promptly have a substitute
Assignment prepared or have such defect cured, as the case may be, and
thereafter cause each such Assignment to be duly recorded.
Notwithstanding
the foregoing, for administrative convenience and facilitation of servicing
and
to reduce closing costs, the Assignments shall not be required to be submitted
for recording (except with respect to any Mortgage Loan located in Maryland)
unless the Trustee and the Depositor receive notice that such failure to record
would result in a withdrawal or a downgrading by any Rating Agency of the rating
on any Class of Certificates; provided, however, each Assignment, except with
respect to any Mortgage Loan for which MERS is identified on the Mortgage,
shall
be submitted for recording in the manner described above, at no expense to
the
Trust Fund or Trustee, upon the earliest to occur of: (i) reasonable direction
by the Holders of Certificates entitled to at least 25% of the Voting Rights,
(ii) the occurrence of a Servicer Event of Termination, (iii) the occurrence
of
a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the
occurrence of a servicing transfer as described in Section 7.02 hereof, (v)
upon
receipt of notice from the related Servicer, the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgagor under the related Mortgage,
(vi) upon receipt of notice from the related Servicer, any Mortgage Loan that
is
90 days or more Delinquent and (vii) reasonable direction by the NIMS Insurer.
In the event of (i) through (vii) set forth in the immediately preceding
sentence, the Trustee shall enforce the obligations of the Seller or the
Originator, as applicable, to deliver such Assignments for recording as provided
above, promptly and in any event within 30 days following receipt of notice
by
the Seller or the Originator, as applicable. Notwithstanding the foregoing,
if
the Seller or the Originator, as applicable, fails to pay the cost of recording
the Assignments, such expense will be paid by the Trustee and the Trustee shall
be reimbursed for such expenses by the Trust. In the event an Assignment is
not
recorded, neither the Trustee nor the Servicers will have any liability for
the
failure to act on notices that were not received and would have been had such
Assignment been recorded, except, in the case of the Trustee, with respect to
Mortgage Loans that are subject to provisions (i) through (vi) set forth in
this
paragraph, if the Trustee shall have failed to timely request the Seller or
the
Originator to cause such Assignments to be recorded.
Ocwen
shall forward to the related Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution; provided, however, that Ocwen shall provide the related Custodian
with a certified true copy of any such document submitted for recordation within
two weeks of its execution, and shall provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within 365 days of its submission for recordation. In the event that
Ocwen
cannot
provide a copy of such document certified by the public recording office within
such 365 day period, Ocwen shall deliver to the related Custodian, within such
365 day period, an Officers’ Certificate of Ocwen which shall (A) identify the
recorded document, (B) state that the recorded document has not been delivered
to the related Custodian due solely to a delay caused by the public recording
office, (C) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation,
if
known and (D) specify the date the applicable recorded document is expected
to
be delivered to the related Custodian, and, upon receipt of a copy of such
document certified by the public recording office, Ocwen shall immediately
deliver such document to the related Custodian. In the event the appropriate
public recording office will not certify as to the accuracy of such document,
Ocwen shall deliver a copy of such document certified by an officer of Ocwen
to
be a true and complete copy of the original to the related Custodian. The
Depositor shall deliver or cause the Seller to deliver to the related Servicer
copies of all trailing documents required to be included in the servicing file
at the same time the originals or certified copies thereof are delivered to
the
Trustee or the related Custodian, such documents including but not limited
to
the mortgagee policy of title insurance and any mortgage loan documents upon
return from the recording office. No Servicer shall be responsible for any
custodian fees or other costs incurring in obtaining such documents and the
Depositor shall cause each Servicer to be reimbursed for any such costs it
may
incur in connection with performing its obligations under this
Agreement
The
parties hereto understand and agree that it is not intended that any Mortgage
Loan be included in the Trust that is a “High-Cost Home Loan” as defined by the
Homeownership and Equity Protection Act of 1994 or any other applicable
predatory or abusive lending laws.
| SECTION 2.02 |
Acceptance
by Trustee.
|
Subject
to the provisions of Section 2.01 and subject to the review described below
and
any exceptions noted on the exception report described in the next paragraph
below, the Trustee acknowledges receipt (or receipt by the related Custodian
on
behalf of the Trustee) of the documents referred to in Section 2.01 above and
all other assets included in the definition of “Trust Fund” and declares that it
holds and will hold such documents and the other documents delivered to it
constituting a Mortgage File, and that it holds or will hold all such assets
and
such other assets included in the definition of “Trust Fund” in trust for the
exclusive use and benefit of all present and future
Certificateholders.
The
Trustee agrees to execute and deliver to the Depositor and the related Servicer
on or prior to the Closing Date an acknowledgment of receipt of the related
original Mortgage Note for each Mortgage Loan (with any exceptions noted),
substantially in the form attached as Exhibit F-3 hereto.
The
Trustee (or the related Custodian on behalf of the Trustee) agrees, for the
benefit of the Certificateholders, to review, or that it has reviewed pursuant
to Section 2.01 (or to cause the related Custodian to review or that it has
caused the related Custodian to have reviewed) each Mortgage File on or prior
to
the Closing Date, with respect to each Mortgage Loan (or, with respect to any
document delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage Loan, within 45 days after the
assignment thereof). The Trustee further agrees, for the benefit of the
Certificateholders, to certify to the Depositor and the related Servicer (with
a
copy to the NIMS Insurer) in substantially the form attached hereto as Exhibit
F-1, within 45 days after the Closing Date, with respect to each Mortgage Loan
(or, with respect to any document delivered after the Startup Day, within 45
days of receipt and with respect to any Qualified Substitute Mortgage, within
45
days after the assignment thereof) that, as to each Mortgage Loan listed in
the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in the exception report annexed thereto
as
not being covered by such certification), (i) all documents required to be
delivered to it pursuant to Section 2.01 of this Agreement are in its
possession, (ii) such documents have been reviewed by it and have not been
mutilated, damaged or torn and appear on their face to relate to such Mortgage
Loan and (iii) based on its examination and only as to the foregoing, the
information set forth in the Mortgage Loan Schedule that corresponds to items
(1) and (3) of the Mortgage Loan Schedule accurately reflects information set
forth in the Mortgage File. It is herein acknowledged that, in conducting such
review, the Trustee (or the related Custodian, as applicable) is under no duty
or obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that they are genuine, legally
enforceable, valid or binding or appropriate for the represented purpose or
that
they have actually been recorded or that they are other than what they purport
to be on their face.
Prior
to
the first anniversary date of this Agreement the Trustee shall deliver (or
cause
the related Custodian to deliver) to the Depositor the Trustee, the related
Servicer and the Master Servicer (with a copy to the NIMS Insurer) a final
certification in the form annexed hereto as Exhibit F-2 (or, in the case of
the
related Custodian, Exhibit 2 to the Custodial Agreement), with any applicable
exceptions noted thereon.
If
in the
process of reviewing the Mortgage Files and making or preparing, as the case
may
be, the certifications referred to above, the Trustee (or the related Custodian,
as applicable) finds any document or documents constituting a part of a Mortgage
File to be missing or not to conform with respect to any characteristics which
are within the scope of the Trustee’s (or the related Custodian’s, as
applicable) review as provided herein, at the conclusion of its review, the
Trustee (or the related Custodian on behalf of the Trustee) shall so notify
the
Seller, the Depositor, the related Originator, the Trustee, the related
Servicer, the NIMS Insurer and the Master Servicer. In addition, upon the
discovery by the Depositor or the related Servicer or the Master Servicer (or
upon receipt by the Trustee of written notification of such breach) of a breach
of any of the representations and warranties made by an Originator in the
related Master Agreement or the Seller in the Mortgage Loan Purchase Agreement
or an Assignment Agreement in respect of any Mortgage Loan which materially
adversely affects such Mortgage Loan or the interests of the Certificateholders
in such Mortgage Loan, the party discovering such breach shall give prompt
written notice to the other parties to this Agreement and the NIMS
Insurer.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear of any
liens and encumbrances, from the Depositor to the Trustee in trust for the
benefit of the Certificateholders and that such property not be part of the
Depositor’s estate or property of the Depositor in the event of any insolvency
by the Depositor. In the event that such conveyance is deemed to be, or to
be
made as security for, a loan, the parties intend that the Depositor shall be
deemed to have granted and does hereby grant to the Trustee a first priority
perfected security interest in all of the Depositor’s right, title and interest
in and to the Mortgage Loans, the related Mortgage Notes and the related
documents, and that this Agreement shall constitute a security agreement under
applicable law.
| SECTION 2.03 |
Repurchase
or Substitution of Mortgage Loans by an Originator or the
Seller.
|
(a) Upon
discovery or receipt of written notice from the related Custodian of any
materially defective document in, or that a document is missing from, a Mortgage
File or of the breach by an Originator or the Seller, as applicable, of any
representation, warranty or covenant under the Master Agreement, the Mortgage
Loan Purchase Agreement or the Assignment Agreement, as applicable, in respect
of any Mortgage Loan which materially adversely affects the value of such
Mortgage Loan or the interest therein of the Certificateholders, the Trustee
shall request that the Originator or the Seller, as applicable, deliver such
missing document or that the Originator or the Seller, as applicable, cure
such
defect or breach within 90 (in the case of an Originator) or 120 (in the case
of
the Seller) days from the date the Originator or the Seller, as applicable,
was
notified of such missing document, defect or breach, and if the Originator
or
the Seller, as applicable, does not deliver such missing document or cure such
defect or breach in all material respects during such period, the Trustee shall
enforce (in the manner set forth in Section 2.01) the related Originator’s
obligation under the related Master Agreement or the related Assignment
Agreement or the Seller’s obligation under the Mortgage Loan Purchase Agreement
or the related Assignment Agreement and notify the related Originator or the
Seller, as applicable, of its obligation to repurchase such Mortgage Loan from
the Trust Fund at the Purchase Price on or prior to the Determination Date
following the expiration of such 90 or 120 day period (subject to Section
2.03(e)). The Purchase Price for the repurchased Mortgage Loan shall be remitted
to the related Servicer for deposit in the Collection Account or the related
Custodial Account, and the Trustee, (or the related Custodian on behalf of
the
Trustee), upon receipt of written certification from the related Servicer of
such deposit, shall release to the related Originator or the Seller, as
applicable, the related Mortgage File and the Trustee shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
as
the related Originator or the Seller, as applicable, shall furnish to it and
as
shall be necessary to vest in the related Originator or Seller, as applicable,
any Mortgage Loan released pursuant hereto and the Trustee and the related
Custodian shall have no further responsibility with regard to such Mortgage
File
(it being understood that the Trustee shall have no responsibility for
determining the sufficiency of such assignment for its intended purpose). In
lieu of repurchasing any such Mortgage Loan as provided above, the related
Originator or the Seller, as applicable, may cause such Mortgage Loan to be
removed from the Trust Fund (in which case it shall become a Deleted Mortgage
Loan) and substitute one or more Qualified Substitute Mortgage Loans in the
manner and subject to the limitations set forth in Section 2.03(d); provided,
however, neither an Originator nor the Seller may substitute for any Mortgage
Loan which breaches a representation or warranty regarding abusive or predatory
lending laws. In furtherance of the foregoing, if the related Originator or
the
Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan
which is registered on the MERS® System, such Originator or the Seller, as
applicable, at its own expense and without any right of reimbursement, shall
cause MERS to execute and deliver an assignment of the Mortgage in recordable
form to transfer the Mortgage from MERS to the related Originator or the Seller,
as applicable, and shall cause such Mortgage to be removed from registration
on
the MERS® System in accordance with MERS’ rules and regulations. It is
understood and agreed that the obligation of the related Originator or the
Seller, as applicable, to cure or to repurchase (or to substitute for) any
Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against the related Originator
or
the Seller, as applicable, respecting such omission, defect or breach available
to the Trustee on behalf of the Certificateholders.
Within
90
days of the earlier of discovery by the Depositor or receipt of notice by the
Depositor of the breach of any representation, warranty or covenant of the
Depositor set forth in Section 2.06, which materially and adversely affects
the
interests of the Certificateholders in any Mortgage Loan, the Depositor shall
cure such breach in all material respects.
(b) Within
90
days of the earlier of discovery by Ocwen or receipt of notice by Ocwen of
the
breach of any representation, warranty or covenant of Ocwen set forth in Section
2.05 which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, Ocwen shall cure such breach in all
material respects.
(c) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) must be effected prior to the last Business
Day
that is within two years after the Closing Date. As to any Deleted Mortgage
Loan
for which the related Originator or the Seller, as applicable, substitutes
a
Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected
by the related Originator or the Seller, as applicable, delivering to the
Trustee, (or the related Custodian on behalf of the Trustee), for such Qualified
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage and the
Assignment to the Trustee, and such other documents and agreements, with all
necessary endorsements thereon, as are required by Section 2.01, together with
an Officers’ Certificate providing that each such Qualified Substitute Mortgage
Loan satisfies the definition thereof and specifying the Substitution Adjustment
(as described below), if any, in connection with such substitution. The Trustee
(or the related Custodian on behalf of the Trustee), shall acknowledge receipt
for such Qualified Substitute Mortgage Loan or Loans and, within 45 days
thereafter, shall review such documents as specified in Section 2.02 and deliver
to the Depositor and the Servicer, with respect to such Qualified Substitute
Mortgage Loan or Loans, a certification substantially in the form attached
hereto as Exhibit F-1 (with a copy to the NIMS Insurer), with any applicable
exceptions noted thereon. Within one year of the date of substitution, the
Trustee (or the related Custodian on behalf of the Trustee) shall deliver to
the
Depositor and the related Servicer a certification substantially in the form
of
Exhibit F-2 hereto (with a copy to the NIMS Insurer) with respect to such
Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions
noted thereon. Monthly Payments due with respect to Qualified Substitute
Mortgage Loans in the month of substitution are not part of the Trust Fund
and
will be retained by the related Originator or the Seller, as applicable. For
the
month of substitution, distributions to Certificateholders will reflect the
collections and recoveries in respect of such Deleted Mortgage Loan in the
Due
Period preceding the month of substitution and the related Originator or the
Seller, as applicable, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Depositor
shall give or cause to be given written notice to the Trustee and the NIMS
Insurer, who shall forward such notice to the Certificateholders, that such
substitution has taken place, shall amend the Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan from the terms of this Agreement
and
the substitution of the Qualified Substitute Mortgage Loan or Loans and shall
deliver a copy of such amended Mortgage Loan Schedule to the Master Servicer,
the Trust Administrator, the Trustee, the related Custodian, the related
Servicer and the NIMS Insurer. Upon such substitution by the related Originator
or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans
shall constitute part of the Mortgage Pool and shall be subject in all respects
to the terms of this Agreement and the Mortgage Loan Purchase Agreement or
the
related Assignment Agreement, as applicable, including all applicable
representations and warranties thereof included in the related Assignment
Agreement as of the date of substitution.
For
any
month in which an Originator or the Seller, as applicable, substitutes one
or
more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the related Servicer will determine the amount (the “Substitution Adjustment”),
if any, by which the aggregate Purchase Price of all such Deleted Mortgage
Loans
exceeds the aggregate, as to each such Qualified Substitute Mortgage Loan,
of
the Stated Principal Balance thereof as of the date of substitution, together
with one month’s interest on such Stated Principal Balance at the applicable
Mortgage Rate. On the date of such substitution, the related Originator or
the
Seller, as applicable, will deliver or cause to be delivered to the related
Servicer for deposit in the Collection Account or the related Custodial Account,
as applicable, an amount equal to the Substitution Adjustment, if any, and
the
Trustee (or the related Custodian on behalf of the Trustee), upon receipt of
the
related Qualified Substitute Mortgage Loan or Loans and certification by the
related Servicer of such deposit, shall release to the related Originator or
the
Seller, as applicable, the related Mortgage File or Files and the Trustee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as the related Originator or the Seller, as applicable, shall
deliver to it and as shall be necessary to vest therein any Deleted Mortgage
Loan released pursuant hereto.
In
addition, pursuant to the terms of the Mortgage Loan Purchase Agreement and
each
Assignment Agreement, the related Originator or the Seller, as applicable,
shall
obtain at its own expense and deliver to the Trustee, the Trust Administrator
and the NIMS Insurer an Opinion of Counsel to the effect that such substitution
will not cause (a) any federal tax to be imposed on the Trust Fund, including
without limitation, any federal tax imposed on “prohibited transactions” under
Section 860F(a)(I) of the Code or on “contributions after the startup date”
under Section 860G(d)(I) of the Code or (b) any REMIC to fail to qualify as
a
REMIC at any time that any Certificate is outstanding. If such Opinion of
Counsel can not be delivered, then such substitution may only be effected at
such time as the required Opinion of Counsel can be given.
(d) Upon
discovery by the Depositor, the Master Servicer, the Trust Administrator or
the
NIMS Insurer that any Mortgage Loan does not constitute a “qualified mortgage”
within the meaning of Section 860G(a)(3) of the Code, the party discovering
such
fact shall within two Business Days give written notice thereof to the other
parties hereto. In connection therewith, the related Originator, the Seller
or
the Depositor, as the case may be, shall repurchase or, subject to the
limitations set forth in Section 2.03(d), substitute one or more Qualified
Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of
the
earlier of discovery or receipt of such notice with respect to such affected
Mortgage Loan. Such repurchase or substitution shall be made (i) by the related
Originator if the affected Mortgage Loan’s status as a non-qualified mortgage is
or results from a breach of any representation, warranty or covenant made by
such Originator under the related Master Agreement or Assignment Agreement,
(ii)
by the Seller if the affected Mortgage Loan’s status as a non-qualified mortgage
is or results from a breach of any representation, warranty or covenant made
by
the Seller under the Mortgage Loan Purchase Agreement or (iii) the Depositor,
if
the affected Mortgage Loan’s status as a non-qualified mortgage is a breach of
any representation or warranty of the Depositor set forth in Section 2.06,
or if
its status as a non-qualified mortgage is a breach of no representation or
warranty. Any such repurchase or substitution shall be made in the same manner
as set forth in Section 2.03(a) or 2.03(d), if made by an Originator or the
Seller, or Section 2.03(b), if made by the Depositor. The Trustee shall reconvey
to the Depositor or the Originator, as the case may be, the Mortgage Loan to
be
released pursuant hereto in the same manner, and on the same terms and
conditions, as it would a Mortgage Loan repurchased for breach of a
representation or warranty.
(e) Upon
discovery or receipt of written notice of a breach by the Seller of any
representation, warranty or covenant made by the Seller under an Assignment
Agreement in respect of any Mortgage Loan which materially adversely affects
the
value of such Mortgage Loan or the interest therein of the Certificateholders,
and if either (i) such Mortgage Loan is not in breach of any representation,
warranty or covenant of the related Originator or (ii) the related Originator
has failed to remedy such representation, warranty or covenant with respect
to
such Mortgage Loan, then the Trustee shall enforce the obligation of the Seller
to remedy such breach, to the extent provided in the related Assignment
Agreement, in the manner and within the time periods set forth in the related
Assignment Agreement.
| SECTION 2.04 |
[Reserved].
|
| SECTION 2.05 |
Representations,
Warranties and Covenants of Ocwen and the Master
Servicer.
|
(a) Ocwen
hereby represents, warrants and covenants to the Trust Administrator and the
Trustee, for the benefit of each of the Trustee, the Trust Administrator, the
Certificateholders and to the Depositor that as of the Closing Date or as of
such date specifically provided herein:
(i) Ocwen
is
a limited liability company duly organized and validly existing under the laws
of the State of Delaware and is duly authorized and qualified to transact any
and all business contemplated by this Agreement to be conducted by Ocwen in
any
state in which a Mortgaged Property is located or is otherwise not required
under applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such State, to the extent
necessary to ensure its ability to enforce each Mortgage Loan and to service
the
Mortgage Loans in accordance with the terms of this Agreement;
(ii) Ocwen
has
the full power and authority to conduct its business as presently conducted
by
it and to execute, deliver and perform, and to enter into and consummate, all
transactions contemplated by this Agreement. Ocwen has duly authorized the
execution, delivery and performance of this Agreement, has duly executed and
delivered this Agreement, and this Agreement, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a legal, valid
and binding obligation of Ocwen, enforceable against it in accordance with
its
terms except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement of
creditors’ rights generally and by general principles of equity;
(iii) The
execution and delivery of this Agreement by Ocwen, the servicing of the Mortgage
Loans by Ocwen hereunder, the consummation by Ocwen of any other of the
transactions herein contemplated, and the fulfillment of or compliance with
the
terms hereof are in the ordinary course of business of Ocwen and will not (A)
result in a breach of any term or provision of the certificate of formation
or
limited liability company agreement of Ocwen or (B) conflict with, result in
a
breach, violation or acceleration of, or result in a default under, the terms
of
any other material agreement or instrument to which Ocwen is a party or by
which
it may be bound, or any statute, order or regulation applicable to Ocwen of
any
court, regulatory body, administrative agency or governmental body having
jurisdiction over Ocwen; and Ocwen is not a party to, bound by, or in breach
or
violation of any indenture or other agreement or instrument, or subject to
or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects or, to Ocwen’s knowledge, would in the future
materially and adversely affect, (x) the ability of Ocwen to perform its
obligations under this Agreement or (y) the business, operations, financial
condition, properties or assets of Ocwen taken as a whole;
(iv) Ocwen
is
a HUD approved servicer. No event has occurred, including but not limited to
a
change in insurance coverage, that would make Ocwen unable to comply with HUD
eligibility requirements or that would require notification to HUD;
(v) Ocwen
does not believe, nor does it have any reason or cause to believe, that it
cannot perform each and every covenant made by it and contained in this
Agreement;
(vi) No
information, certificate of an officer, statement furnished in writing or report
delivered to the Trustee or the Trust Administrator by Ocwen in connection
with
the transactions contemplated hereby contains any untrue statement of a material
fact (except to the extent that any such information, statement or report has
been corrected or superseded in writing by Ocwen as of the Closing Date, it
being understood (i) that Ocwen has delivered no certificate of an officer
prior
to the Closing Date and (ii) that any representations, warranties and
indemnifications as to the accuracy and completeness of the Prospectus
Supplement made by Ocwen in agreements and Officers’ Certificates delivered by
Ocwen on the Closing Date in connection with the transactions contemplated
by
this Agreement shall be interpreted such that the information in the Prospectus
Supplement provided by Ocwen is deemed to correct and/or supersede as of the
Closing Date, within the meaning of this parenthetical, any information,
statement or report delivered by Ocwen to the Trustee prior to the Closing
Date
that is inconsistent with the information in the Prospectus Supplement or that
was omitted from such information, statement or report delivered prior to the
Closing Date);
(vii) No
litigation is pending against Ocwen that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or the ability
of
Ocwen to service the Mortgage Loans or to perform any of its other obligations
hereunder in accordance with the terms hereof;
(viii) There
are
no actions or proceedings against, or investigations known to it of, Ocwen
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the consummation of the
transactions contemplated by this Agreement or (C) that might prohibit or
materially and adversely affect the performance by Ocwen of its obligations
under, or validity or enforceability of, this Agreement;
(ix) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Ocwen of, or
compliance by Ocwen with, this Agreement or the consummation by it of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the Closing Date;
(x) Ocwen
will not waive any Prepayment Charge unless it is waived in accordance with
the
standard set forth in Section 3.01; and
(xi) With
respect to each Mortgage Loan, Ocwen has fully and accurately furnished with
respect to the period in which it serviced the Mortgage Loans, and will continue
to fully and accurately furnish, complete information on the related borrower
credit files to Equifax, Experian and Trans Union Credit Information Company,
in
accordance with the Fair Credit Reporting Act and its implementing
regulations.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the
Trustee or to the related Custodian on its behalf and shall inure to the benefit
of the Trustee, the Trust Administrator, the Depositor and the
Certificateholders. Upon discovery by any of the Depositor, the Trust
Administrator or the Trustee of a breach of any of the foregoing
representations, warranties and covenants which materially and adversely affects
the value of any Mortgage Loan, Prepayment Charge or the interests therein
of
the Certificateholders, the party discovering such breach shall give prompt
written notice (but in no event later than two Business Days following such
discovery) to Ocwen, the Trustee and the Trust Administrator. The foregoing
shall not, however, limit any remedies available to the Certificateholders,
the
Depositor, the Trust Administrator or the Trustee on behalf of the
Certificateholders, pursuant to the Master Agreements, the Assignment Agreements
or the Mortgage Loan Purchase Agreement respecting a breach of the
representations, warranties and covenants of the Originators or the
Seller.
(b) The
Master Servicer hereby represents, warrants and covenants to the Trustee, for
the benefit of each of the Trustee and the Certificateholders, and to each
Servicer and the Depositor that as of the Closing Date or as of such date
specifically provided herein:
(i) The
Master Servicer is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its business as
presently conducted by it and to execute, deliver and perform, and to enter
into
and consummate, all transactions contemplated by this Agreement. The Master
Servicer has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Depositor and the
Trustee, constitutes a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors’ rights generally and by
general principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof are
in
the ordinary course of business of the Master Servicer and will not (A) result
in a breach of any term or provision of charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or acceleration
of,
or result in a default under, the terms of any other material agreement or
instrument to which the Master Servicer is a party or by which it may be bound,
or any statute, order or regulation applicable to the Master Servicer of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Master Servicer; and the Master Servicer is not a party
to, bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the Master
Servicer’s knowledge, would in the future materially and adversely affect, the
ability of the Master Servicer to perform its obligations under this
Agreement;
(iv) The
Master Servicer or an Affiliate thereof is an approved seller/servicer for
Xxxxxx Xxx or Xxxxxxx Mac in good standing and is a HUD approved mortgagee
pursuant to Section 203 of the National Housing Act;
(v) The
Master Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant made by it and contained
in this Agreement;
(vi) No
litigation is pending against the Master Servicer that would materially and
adversely affect the execution, delivery or enforceability of this Agreement
or
the ability of the Master Servicer to perform any of its other obligations
hereunder in accordance with the terms hereof;
(vii) There
are
no actions or proceedings against, or investigations known to it of, the Master
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the Master
Servicer of its obligations under, or validity or enforceability of, this
Agreement; and
(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 or orders, if any, that have been obtained
prior to the Closing Date.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the
Trust Administrator, the Trustee or the related Custodian, as applicable and
shall inure to the benefit of the Trustee, the Depositor and the
Certificateholders. Upon discovery by any of the Depositor, any Servicer, the
Master Servicer or the Trustee of a breach of any of the foregoing
representations, warranties and covenants which materially and adversely affects
the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice (but in no event later than two Business Days following such discovery)
to other parties to this Agreement.
| SECTION 2.06 |
Representations
and Warranties of the Depositor.
|
The
Depositor represents and warrants to the Trust, the Servicer and the Trustee
on
behalf of the Certificateholders as follows:
(i) This
agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) Immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust of each Mortgage Loan, the Depositor had good and marketable title
to
each Mortgage Loan (insofar as such title was conveyed to it by the Seller)
subject to no prior lien, claim, participation interest, mortgage, security
interest, pledge, charge or other encumbrance or other interest of any
nature;
(iii) As
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trustee on behalf of the Trust;
(iv) The
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust with any intent to hinder, delay or defraud any of its
creditors;
(v) The
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) The
Depositor is not in violation of its articles of incorporation or by-laws or
in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is a party
or
by which it or its properties may be bound, which default might result in any
material adverse changes in the financial condition, earnings, affairs or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor;
(vii) The
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated thereby, do not and will not
result in a material breach or violation of any of the terms or provisions
of,
or, to the knowledge of the Depositor, constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the Depositor is bound
or to which any of the property or assets of the Depositor is subject, nor
will
such actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or, to the best of the Depositor’s
knowledge without independent investigation, any statute or any order, rule
or
regulation of any court or governmental agency or body having jurisdiction
over
the Depositor or any of its properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a material adverse effect
on
the ability of the Depositor to perform its obligations under this
Agreement);
(viii) To
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or Blue Sky laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement;
and
(ix) There
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement, as
the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement.
| SECTION 2.07 |
Issuance
of Certificates.
|
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it of the Mortgage Files, subject to the provisions of Sections 2.01 and
2.02, together with the assignment to it of all other assets included in the
Trust Fund, receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery and in exchange therefor, the Trust Administrator,
pursuant to the written request of the Depositor executed by an officer of
the
Depositor, has executed, authenticated and delivered to or upon the order of
the
Depositor, the Certificates in authorized denominations. The interests evidenced
by the Certificates constitute the entire beneficial ownership interest in
the
Trust Fund.
| SECTION 2.08 |
Authorization
to Enter into Basis Risk Cap Agreement, Interest Rate Cap Agreement
and
Interest Rate Swap Agreement.
|
(a) The
Trust
Administrator is hereby directed to execute and deliver the Basis Risk Cap
Agreement on behalf of Party B (as defined therein) and to exercise the rights,
perform the obligations, and make the representations of Party B thereunder,
solely in its capacity as Trust Administrator on behalf of Party B (as defined
therein) and not in its individual capacity. Ocwen, the Depositor and the
Certificateholders (by acceptance of their Certificates) acknowledge and agree
that (i) the Trust Administrator shall execute and deliver the Basis Risk Cap
Agreement on behalf of Party B (as defined therein) and (ii) the Trust
Administrator shall exercise the rights, perform the obligations, and make
the
representations of Party B thereunder, solely in its capacity as Trust
Administrator on behalf of Party B as defined therein) and not in its individual
capacity.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trust Administrator shall apply to the Trust
Administrator’s execution of the Basis Risk Cap Agreement, and the performance
of its duties and satisfaction of its obligations thereunder.
(b) The
Trust
Administrator, not in its individual capacity but solely in its separate
capacity as Cap Trustee, is hereby directed to exercise the rights, perform
the
obligations, and make any representations to be exercised, performed, or made
by
the Cap Trustee, as described herein. The Cap Trustee is hereby directed to
execute and deliver the Interest Rate Cap Agreement on behalf of Party B (as
defined therein) and to exercise the rights, perform the obligations, and make
the representations of Party B thereunder, solely in its capacity as Cap Trustee
on behalf of Party B (as defined therein) and not in its individual capacity.
Ocwen, the Depositor and the Certificateholders (by acceptance of their
Certificates) acknowledge and agree that (i) the Cap Trustee shall execute
and
deliver the Interest Rate Cap Agreement on behalf of Party B (as defined
therein), (ii) the Cap Trustee shall exercise the rights, perform the
obligations, and make the representations of Party B thereunder, solely in
its
capacity as Cap Trustee on behalf of Party B (as defined therein) and not in
its
individual capacity and (iii) the Trust Administrator on the Cap Trustee’s
behalf shall also be entitled to exercise the rights and obligated to perform
the obligations of Party B under the Interest Rate Cap Agreement. Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trust Administrator shall apply to the Cap
Trustee’s execution of the Interest Rate Cap Agreement, and the performance of
its duties and satisfaction of its obligations thereunder.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trust Administrator shall apply to the Trust
Administrator’s execution (as Cap Trustee) of the Interest Rate Cap Agreement,
and the performance of its duties and satisfaction of its obligations
thereunder.
(c) The
Trust
Administrator, not in its individual capacity but solely in its separate
capacity as Supplemental Interest Trust Trustee, is hereby directed to exercise
the rights, perform the obligations, and make any representations to be
exercised, performed, or made by the Supplemental Interest Trust Trustee, as
described herein. The Supplemental Interest Trust Trustee is hereby directed
to
execute and deliver the Interest Rate Swap Agreement on behalf of Party B (as
defined therein) and to exercise the rights, perform the obligations, and make
the representations of Party B thereunder, solely in its capacity as
Supplemental Interest Trust Trustee on behalf of Party B (as defined therein)
and not in its individual capacity. Ocwen, the Depositor and the
Certificateholders (by acceptance of their Certificates) acknowledge and agree
that (i) the Supplemental Interest Trust Trustee shall execute and deliver
the
Interest Rate Swap Agreement on behalf of Party B (as defined therein), (ii)
the
Supplemental Interest Trust Trustee shall exercise the rights, perform the
obligations, and make the representations of Party B thereunder, solely in
its
capacity as Supplemental Interest Trust Trustee on behalf of Party B (as defined
therein) and not in its individual capacity and (iii) the Trust Administrator
on
the Supplemental Interest Trust Trustee’s behalf shall also be entitled to
exercise the rights and obligated to perform the obligations of Party B under
the Interest Rate Swap Agreement. Every provision of this Agreement relating
to
the conduct or affecting the liability of or affording protection to the Trust
Administrator shall apply to the Supplemental Interest Trust Trustee’s execution
of the Interest Rate Swap Agreement, and the performance of its duties and
satisfaction of its obligations thereunder.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trust Administrator shall apply to the Trust
Administrator’s execution (as Supplemental Interest Trust Trustee) of the
Interest Rate Swap Agreement, and the performance of its duties and satisfaction
of its obligations thereunder.
| SECTION 2.09 |
Conveyance
of REMIC Regular Interests and Acceptance of REMIC 1, REMIC 2, REMIC
3,
REMIC 4, REMIC 5 and REMIC 6 by the Trustee; Issuance of
Certificates.
|
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC 1 for the benefit of the holders of the
REMIC 1 Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-1 Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC 1 and declares that
it holds and will hold the same in trust for the exclusive use and benefit
of
the holders of the REMIC 1 Regular Interests and the Class R Certificates (in
respect of the Class R-1 Interest). The interests evidenced by the Class R-1
Interest, together with the REMIC 1 Regular Interests, constitute the entire
beneficial ownership interest in REMIC 1.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
1 Regular Interests for the benefit of the holders of the REMIC 2 Regular
Interests (which are uncertificated) and the Class R Certificates (in respect
of
the Class R-2 Interest). The Trustee acknowledges receipt of the REMIC 1 Regular
Interests and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the holders of the REMIC 2 Regular Interests and
the Class R Certificates (in respect of the Class R-2 Interest). The interests
evidenced by the Class R-2 Interest, together with the REMIC 2 Regular
Interests, constitute the entire beneficial ownership interest in REMIC
2.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
2 Regular Interests (which are uncertificated) for the benefit of the Holders
of
the Regular Certificates (other than the Class C Certificates or the Class
P
Certificates), the
Class
C Interest, the Class P Interest, the Class IO Interest and
the
Class R Certificates (in respect of the Class R-3 Interest). The Trustee
acknowledges receipt of the REMIC 3 Regular Interests and declares that it
holds
and will hold the same in trust for the exclusive use and benefit of the Holders
of the Regular Certificates (other than the Class C Certificates or Class P
Certificates), the Class C Interest, the Class P Interest, the Class IO Interest
and the Class R Certificates (in respect of the Class R-3 Interest). The
interests evidenced by the Class R-3 Interest, together with the Regular
Certificates (other than the Class C Certificates or Class P Certificates),
the
Class C Interest, the Class P Interest and the Class IO Interest, constitute
the
entire beneficial ownership interest in REMIC 3.
(d) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
C Interest (which is uncertificated) for the benefit of the Holders of the
Class
C Certificates and the Class R-X Certificates (in respect of the Class R-4
Interest). The Trustee acknowledges receipt of the Class C Interest and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the Holders of the Class C Certificates and the Class R-X Certificates (in
respect of the Class R-4 Interest). The interests evidenced by the Class R-4
Interest, together with the Class C Certificates, constitute the entire
beneficial ownership interest in REMIC 4.
(e) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
P Interest (which is uncertificated) for the benefit of the Holders of the
Class
P Certificates and the Class R-X Certificates (in respect of the Class R-5
Interest). The Trustee acknowledges receipt of the Class P Interest and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the Holders of the Class P Certificates and the Class R-X Certificates (in
respect of the Class R-5 Interest). The interests evidenced by the Class R-5
Interest, together with the Class P Certificates, constitute the entire
beneficial ownership interest in REMIC 5.
(f) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
IO Interest (which is uncertificated) for the benefit of the Holders of the
REMIC 6 Regular Interest SWAP IO and the Class R-X Certificates (in respect
of
the Class R-6 Interest). The Trustee acknowledges receipt of the Class IO
Interest and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the Holders of the REMIC 6 Regular Interest SWAP
IO
and the Class R-X Certificates (in respect of the Class R-6 Interest). The
interests evidenced by the Class R-6 Interest, together with the REMIC 6 Regular
Interest SWAP IO, constitute the entire beneficial ownership interest in REMIC
6.
(g) Concurrently
with (i) the assignment and delivery to the Trustee of REMIC 1 and the
acceptance by the Trustee thereof, pursuant to Section 2.01, Section 2.02 and
subsection (a) hereof, (ii) the assignment and delivery to the Trustee of REMIC
2 (including the Residual Interest therein represented by the Class R-2
Interest) and the acceptance by the Trustee thereof, pursuant to subsection
(b)
hereof, (iii) the assignment and delivery to the Trustee of REMIC 3 (including
the Residual Interest therein represented by the Class R-3 Interest) and the
acceptance by the Trustee thereof, pursuant to subsection (c) hereof, (iv)
the
assignment and delivery to the Trustee of REMIC 4 (including the Residual
Interest therein represented by the Class R-4 Interest) and the acceptance
by
the Trustee thereof, pursuant to subsection (d) hereof, (v) the assignment
and
delivery to the Trustee of REMIC 5 (including the Residual Interest therein
represented by the Class R-5 Interest) and the acceptance by the Trustee
thereof, pursuant to subsection (e) hereof, and (vi) the assignment and delivery
to the Trustee of REMIC 6 (including the Residual Interest therein represented
by the Class R-6 Interest) and the acceptance by the Trustee thereof, pursuant
to subsection (f) hereof, the Trustee, pursuant to the written request of the
Depositor executed by an officer of the Depositor, has executed, authenticated
and delivered to or upon the order of the Depositor, (A) the Class R
Certificates in authorized denominations evidencing the Class R-1 Interest,
the
Class R-2 Interest and the Class R-3 Interest and (B) the Class R-X Certificates
in authorized denominations evidencing the Class R-4 Interest, the Class R-5
Interest and the Class R-6 Interest.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
| SECTION 3.01 |
Ocwen
to Act as a Servicer.
|
Ocwen
shall service and administer the Ocwen Mortgage Loans on behalf of the Trust
and
in the best interests of and for the benefit of the Certificateholders (as
determined by Ocwen in its reasonable judgment) in accordance with the terms
of
this Agreement and such Mortgage Loans and, to the extent consistent with such
terms, in the same manner in which it services and administers similar mortgage
loans for its own portfolio, giving due consideration to customary and usual
standards of practice of mortgage lenders and loan servicers administering
similar mortgage loans but without regard to:
(i) any
relationship that Ocwen, any Sub-Servicer or any Affiliate of Ocwen or any
Sub-Servicer may have with the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by Ocwen or any Affiliate of
Ocwen;
(iii) Ocwen’s
obligation to make Advances or Servicing Advances; or
(iv) Ocwen’s
or any Sub-Servicer’s right to receive compensation for its services hereunder
or with respect to any particular transaction.
To
the
extent consistent with the foregoing servicing standard (the “Servicing
Standard”), Ocwen (a) shall seek the timely and complete recovery of principal
and interest on the related Mortgage Notes and (b) may waive (or permit a
Sub-Servicer to waive) a Prepayment Charge only under the following
circumstances: (i) such waiver is standard and customary in servicing similar
mortgage loans and such waiver relates to a default or a reasonably foreseeable
default and would, in the reasonable judgment of Ocwen, maximize recovery of
total proceeds taking into account the value of such Prepayment Charge and
the
related Mortgage Loan, (ii) the collection of such Prepayment Charge would
be in
violation of applicable laws or (iii) the amount of the Prepayment Charge set
forth on the Prepayment Charge Schedule is not consistent with the related
Mortgage Note or is otherwise unenforceable. If a Prepayment Charge is waived
as
permitted by meeting the standard described in clauses (ii) or (iii) above,
then, as notified to the Trustee, the Trustee shall enforce the obligation
of
the related Originator or the Seller, as applicable, to pay the amount of such
waived Prepayment Charge to Ocwen for deposit in the Collection Account for
the
benefit of the Holders of the Class P Certificates. If the related Originator
or
the Seller, as applicable, fails to pay the amount of such waived Prepayment
Charge in accordance with its obligations under the related Assignment
Agreement, the related Master Agreement or the Mortgage Loan Purchase Agreement,
Ocwen shall notify the Trustee, and the Trustee and the Depositor shall consult
on further actions to be taken against the Originator. Subject only to the
above-described Servicing Standard and the terms of this Agreement and of the
Ocwen Mortgage Loans, Ocwen shall have full power and authority, acting alone
or
through Sub-Servicers as provided in Section 3.02, to do or cause to be done
any
and all things in connection with such servicing and administration which it
may
deem necessary or desirable. Without limiting the generality of the foregoing,
Ocwen in its own name or in the name of a Sub-Servicer is hereby authorized
and
empowered by the Trustee when Ocwen believes it appropriate in its best judgment
in accordance with the Servicing Standard, to execute and deliver, on behalf
of
the Certificateholders, the Trust Fund and 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 Ocwen
Mortgage Loans and the related Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee and Certificateholders. Ocwen shall service
and administer the Ocwen Mortgage Loans in accordance with applicable state
and
federal law and shall provide to the related Mortgagors any reports required
to
be provided to them thereby. Ocwen shall also comply in the performance of
this
Agreement with all reasonable rules and requirements of each insurer under
any
standard hazard insurance policy. Subject to Section 3.17, within five (5)
days
of the Closing Date, the Trustee shall execute, at the written request of Ocwen,
and furnish to Ocwen and any Sub-Servicer any special or limited powers of
attorney and other documents necessary or appropriate to enable Ocwen or any
Sub-Servicer to carry out their servicing and administrative duties hereunder;
provided, such limited powers of attorney or other documents shall be prepared
by Ocwen and submitted to the Trustee for execution. The Trustee shall not
be
liable for the actions of Ocwen or any Sub-Servicers under such powers of
attorney.
Ocwen
further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of the
Sub-Servicer, when Ocwen or the Sub-Servicer, as the case may be, believes
it is
appropriate in its best judgment to register any Mortgage Loan on the MERS®
System, or cause the removal from the registration of any Ocwen Mortgage Loan
on
the MERS® System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of
a related Mortgage in the name of MERS, solely as nominee for the Trustee and
its successors and assigns. Any reasonable expenses incurred in connection
with
the actions described in the preceding sentence or as a result of MERS
discontinuing or becoming unable to continue operations in connection with
the
MERS® System, shall be reimbursable to Ocwen by withdrawal from the Collection
Account pursuant to Section 3.11.
Subject
to Section 3.09 hereof, in accordance with the standards of the preceding
paragraph, Ocwen, on escrowed accounts, shall advance or cause to be advanced
funds as necessary for the purpose of effecting the payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
Any cost incurred by Ocwen or by Sub-Servicers in effecting the payment of
taxes
and assessments on a Mortgaged Property shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid Stated
Principal Balance of the related Ocwen Mortgage Loan, notwithstanding that
the
terms of such Mortgage Loan so permit; provided, however, that (subject to
Section 3.07) Ocwen may capitalize the amount of any Servicing Advances incurred
pursuant to this Section 3.01 in connection with the modification of a Mortgage
Loan.
Notwithstanding
anything in this Agreement to the contrary, Ocwen may not make any future
advances with respect to an Ocwen Mortgage Loan (except as provided in Section
4.04) and Ocwen shall not (i) permit any modification with respect to any
Mortgage Loan that would change the Mortgage Rate, reduce or increase the Stated
Principal Balance (except for reductions resulting from actual payments of
principal) or change the final maturity date on such Ocwen Mortgage Loan
(unless, in any such case, the Mortgagor is in default with respect to the
Ocwen
Mortgage Loan or such default is, in the judgment of Ocwen, reasonably
foreseeable) or (ii) permit any modification, waiver or amendment of any term
of
any Ocwen Mortgage Loan that would both (A) effect an exchange or reissuance
of
such Ocwen Mortgage Loan under Section 1001 of the Code (or Treasury regulations
promulgated thereunder) and (B) cause any REMIC created hereunder to fail to
qualify as a REMIC under the Code or the imposition of any tax on “prohibited
transactions” or “contributions after the startup date” under the REMIC
Provisions.
Notwithstanding
anything in this Agreement to the contrary and notwithstanding its ability
to do
so pursuant to the terms of the related mortgage note, Ocwen shall not be
required to enforce any provision in any mortgage note the enforcement of which
would violate federal, state or local laws or ordinances designed to discourage
predatory lending practices.
Ocwen
may
delegate its responsibilities under this Agreement; provided, however, that
no
such delegation shall release Ocwen from the responsibilities or liabilities
arising under this Agreement.
| SECTION 3.02 |
Sub-Servicing
Agreements Between Ocwen and Sub-Servicers;
Subcontractors.
|
(a) Ocwen
may
enter into Sub-Servicing Agreements with Sub-Servicers, which may be Affiliates
of Ocwen, for the performance of a substantial portion of the material servicing
and administration of the Ocwen Mortgage Loans; provided, however, such
sub-servicing arrangement and the terms of the related Sub-Servicing Agreement
must provide for the servicing of the Ocwen Mortgage Loans in a manner
consistent with the servicing arrangement contemplated hereunder. The Trustee
is
hereby authorized to acknowledge, at the request of Ocwen, any Sub-Servicing
Agreement. No such acknowledgment shall be deemed to imply that the Trustee
has
consented to any such Sub-Servicing Agreement, has passed upon whether such
Sub-Servicing Agreement meets the requirements applicable to Sub-Servicing
Agreements set forth in this Agreement or has passed upon whether such
Sub-Servicing Agreement is otherwise permitted under this
Agreement.
Each
Sub-Servicer shall be (i) authorized to transact business in the state or states
where the related Mortgaged Properties it is to service are situated, if and
to
the extent required by applicable law to enable the Sub-Servicer to perform
its
obligations hereunder and under the Sub-Servicing Agreement and (ii) a Xxxxxxx
Mac or Xxxxxx Mae approved mortgage servicer. Each Sub-Servicing Agreement
must
impose on the Sub-Servicer requirements conforming to the provisions set forth
in Section 3.08 and provide for servicing of the Ocwen Mortgage Loans consistent
with the terms of this Agreement. Ocwen will examine each Sub-Servicing
Agreement and will be familiar with the terms thereof. The terms of any
Sub-Servicing Agreement will not be inconsistent with any of the provisions
of
this Agreement. Any variation in any Sub-Servicing Agreements from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Sub-Servicing Accounts, or credits and charges to the
Sub-Servicing Accounts or the timing and amount of remittances by the
Sub-Servicers to Ocwen, are conclusively deemed to be inconsistent with this
Agreement and therefore prohibited. Ocwen shall deliver to the Trustee, the
Trust Administrator and the Master Servicer copies of all Sub-Servicing
Agreements, and any amendments or modifications thereof, promptly upon Ocwen’s
execution and delivery of such instruments.
(b) As
part
of its servicing activities hereunder, Ocwen, for the benefit of the Trustee
and
the Certificateholders, shall enforce the obligations of each Sub-Servicer
under
the related Sub-Servicing Agreement, including, without limitation, any
obligation to make advances in respect of delinquent payments as required by
a
Sub-Servicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Sub-Servicing Agreements, and the
pursuit of other appropriate remedies, shall be in such form and carried out
to
such an extent and at such time as Ocwen, in its good faith business judgment,
would require were it the owner of the related Ocwen Mortgage Loans. Ocwen
shall
pay the costs of such enforcement at its own expense, and shall be reimbursed
therefor only (i) from a general recovery resulting from such enforcement,
to
the extent, if any, that such recovery exceeds all amounts due in respect of
the
related Ocwen Mortgage Loans, or (ii) from a specific recovery of costs,
expenses or attorneys’ fees against the party against whom such enforcement is
directed.
(c) It
shall
not be necessary for Ocwen to seek the consent of the Depositor, the Master
Servicer, the Trust Administrator or the Trustee for the utilization of any
Subcontractor. Ocwen shall promptly, upon request, provide to the Depositor,
the
Master Servicer and the Trust Administrator a written description (in form
and
substance satisfactory to the Depositor, the Master Servicer and the Trust
Administrator) of the role and function of each Subcontractor utilized by Ocwen
or any Sub-Servicer, specifying (i) the identity of each such Subcontractor,
(ii) which (if any) of such Subcontractors are “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB and (iii) which
elements of the Relevant Servicing Criteria will be addressed in assessments
of
compliance provided by each Subcontractor.
(d) As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, Ocwen shall cause any such Subcontractor used by Ocwen (or by
any
Sub-Servicer) for the benefit of the Depositor, the Master Servicer and the
Trust Administrator to comply with the provisions of Section 3.20, 3.21 and
4.05
of this Agreement to the same extent as if the Subcontractor were Ocwen. Ocwen
shall be responsible for obtaining from each Subcontractor and delivering to
the
Depositor, the Master Servicer and the Trust Administrator any assessment of
compliance and attestation required to be delivered by such Subcontractor under
Section 3.21, in each case as and when required to be delivered.
| SECTION 3.03 |
Successor
Sub-Servicers.
|
Ocwen,
shall be entitled to terminate any Sub-Servicing Agreement and the rights and
obligations of any Sub-Servicer pursuant to any Sub-Servicing Agreement in
accordance with the terms and conditions of such Sub-Servicing Agreement. In
the
event of termination of any Sub-Servicer, all servicing obligations of such
Sub-Servicer shall be assumed simultaneously by Ocwen without any act or deed
on
the part of such Sub-Servicer or Ocwen, and Ocwen either shall service directly
the related Mortgage Loans or shall enter into a Sub-Servicing Agreement with
a
successor Sub-Servicer which qualifies under Section 3.02.
Any
Sub-Servicing Agreement shall include the provision that such agreement may
be
immediately terminated by Ocwen or the Master Servicer (if the Master Servicer
is acting as Servicer) without fee, in accordance with the terms of this
Agreement, in the event that Ocwen (or the Master Servicer, if it is then acting
as Servicer) shall, for any reason, no longer be Ocwen (including termination
due to a Servicer Event of Termination).
| SECTION 3.04 |
Liability
of Ocwen.
|
Notwithstanding
any Sub-Servicing Agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between Ocwen and a Sub-Servicer or reference to
actions taken through a Sub-Servicer or otherwise, Ocwen shall remain obligated
and primarily liable to the Trustee and the Certificateholders for the servicing
and administering of the Ocwen Mortgage Loans in accordance with the provisions
of Section 3.01 without diminution of such obligation or liability by virtue
of
such Sub-Servicing Agreements or arrangements or by virtue of indemnification
from the Sub-Servicer and to the same extent and under the same terms and
conditions as if Ocwen alone were servicing and administering the Ocwen Mortgage
Loans. Ocwen shall be entitled to enter into any agreement with a Sub- Servicer
for indemnification of Ocwen by such Sub-Servicer and nothing contained in
this
Agreement shall be deemed to limit or modify such indemnification.
| SECTION 3.05 |
No
Contractual Relationship Between Sub-Servicers and the Trustee, the
Trust
Administrator, the NIMS Insurer or
Certificateholders.
|
Any
Sub-Servicing Agreement that may be entered into and any transactions or
services relating to the Ocwen Mortgage Loans involving a Sub-Servicer in its
capacity as such shall be deemed to be between the Sub-Servicer and Ocwen alone,
and the NIMS Insurer, the Trustee, the Master Servicer, the Trust Administrator
and the Certificateholders shall not be deemed parties thereto and shall have
no
claims, rights, obligations, duties or liabilities with respect to the
Sub-Servicer except as set forth in Section 3.06. Ocwen shall be solely liable
for all fees owed by it to any Sub-Servicer, irrespective of whether Ocwen’s
compensation pursuant to this Agreement is sufficient to pay such
fees.
| SECTION 3.06 |
Assumption
or Termination of Sub-Servicing Agreements by Master
Servicer.
|
In
the
event Ocwen shall for any reason no longer be a Servicer (including by reason
of
the occurrence of a Servicer Event of Termination), the Master Servicer
(or
another successor master servicer)
shall
thereupon assume all of the rights and obligations of Ocwen under each
Sub-Servicing Agreement that Ocwen may have entered into, unless the Master
Servicer elects to terminate any Sub-Servicing Agreement in accordance with
its
terms as provided in Section 3.03. Upon such assumption, the Master Servicer
(or
another successor master servicer) shall be deemed, subject to Section 3.03,
to
have assumed all of Ocwen’s interest therein and to have replaced Ocwen as a
party to each Sub-Servicing Agreement to the same extent as if each
Sub-Servicing Agreement had been assigned to the assuming party, except that
(i)
Ocwen shall not thereby be relieved of any liability or obligations under any
Sub-Servicing Agreement and (ii) none of the Trust Administrator, its designee
or any successor Servicer shall be deemed to have assumed any liability or
obligation of Ocwen that arose before it ceased to be a Servicer.
Ocwen
at
its expense shall, upon request of the Master Servicer, deliver to the assuming
party all documents and records relating to each Sub-Servicing Agreement and
the
Ocwen Mortgage Loans then being serviced and an accounting of amounts collected
and held by or on behalf of it, and otherwise use its best efforts to effect
the
orderly and efficient transfer of the Sub-Servicing Agreements to the assuming
party.
| SECTION 3.07 |
Collection
of Certain Mortgage Loan Payments.
|
Ocwen
shall make reasonable efforts, in accordance with the Servicing Standard, to
collect all payments called for under the terms and provisions of the Ocwen
Mortgage Loans and the provisions of any applicable insurance policies provided
to Ocwen. Consistent with the foregoing, Ocwen may in its discretion (i) waive
any late payment charge or, if applicable, any penalty interest or any
provisions of any Ocwen Mortgage Loan requiring the related Mortgagor to submit
to mandatory arbitration with respect to disputes arising thereunder, or (ii)
extend the due dates for the Monthly Payments due on a Mortgage Note for a
period of not greater than 180 days; provided, however, that any extension
pursuant to clause (ii) above shall not affect the amortization schedule of
any
Ocwen Mortgage Loan for purposes of any computation hereunder, except as
provided below. In the event of any such arrangement pursuant to clause (ii)
above, Ocwen shall make timely Advances on such Mortgage Loan during such
extension pursuant to Section 4.04 and in accordance with the amortization
schedule of such Ocwen Mortgage Loan without modification thereof by reason
of
such arrangement. Notwithstanding the foregoing, in the event that any Ocwen
Mortgage Loan is in default or, in the judgment of Ocwen, such default is
reasonably foreseeable, Ocwen, consistent with the Servicing Standards, may
also
waive, modify or vary any term of such Ocwen Mortgage Loan (including, but
not
limited to, modifications that would change the Mortgage Rate, forgive the
payment of principal or interest or extend the final maturity date of such
Ocwen
Mortgage Loan), accept payment from the related Mortgagor of an amount less
than
the Stated Principal Balance in final satisfaction of such Ocwen Mortgage Loan,
or consent to the postponement of strict compliance with any such term or
otherwise grant indulgence to any Mortgagor (any and all such waivers,
modifications, variances, forgiveness of principal or interest, postponements,
or indulgences collectively referred to herein as “forbearance”); provided,
however, Ocwen shall not modify any Ocwen Mortgage Loan in a manner that would
capitalize the amount of any unpaid Monthly Payments or tax or insurance
payments advanced by Ocwen on the Mortgagor’s behalf unless the related
Mortgagor shall have remitted an amount equal to a full Monthly Payment (or,
in
the case of any Ocwen Mortgage Loan subject to a forbearance plan or bankruptcy
plan, a full modified monthly payment under such plan) in each of the three
calendar months immediately preceding the month of such modification. Ocwen’s
analysis supporting any forbearance and the conclusion that any forbearance
meets the standards of Section 3.01 shall be reflected in writing in the
Mortgage File or Ocwen’s books and records.
| SECTION 3.08 |
Sub-Servicing
Accounts.
|
In
those
cases where a Sub-Servicer is servicing an Ocwen Mortgage Loan pursuant to
a
Sub-Servicing Agreement, the Sub-Servicer will be required to establish and
maintain one or more accounts (collectively, the “Sub-Servicing Account”). The
Sub-Servicing Account shall be an Eligible Account and shall comply with all
requirements of this Agreement relating to the Collection Account. The
Sub-Servicer shall deposit in the clearing account in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Sub-Servicer’s receipt thereof, all proceeds of Ocwen
Mortgage Loans received by the Sub-Servicer less its servicing compensation
to
the extent permitted by the Sub-Servicing Agreement, and shall thereafter
deposit such amounts in the Sub-Servicing Account, in no event more than two
Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Collection Account or remit such
proceeds to Ocwen for deposit in the Collection Account not later than two
Business Days after the deposit of such amounts in the Sub-Servicing Account.
For purposes of this Agreement, Ocwen shall be deemed to have received payments
on the Mortgage Loans when the Sub-Servicer receives such payments.
| SECTION 3.09 |
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
Ocwen
shall establish and maintain, or cause to be established and maintained, one
or
more accounts (the “Servicing Accounts”), into which all Escrow Payments shall
be deposited and retained. Servicing Accounts shall be Eligible Accounts. Ocwen
shall deposit in the clearing account in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than the second Business
Day
after Ocwen’s receipt thereof, all Escrow Payments collected on account of the
Ocwen Mortgage Loans and shall thereafter deposit such Escrow Payments in the
Servicing Accounts, in no event more than two Business Days after the receipt
of
such Escrow Payments, all Escrow Payments collected on account of the Mortgage
Loans for the purpose of effecting the payment of any such items as required
under the terms of this Agreement. Withdrawals of amounts from a Servicing
Account may be made only to (i) effect payment of taxes, assessments, hazard
insurance premiums, and comparable items in a manner and at a time that assures
that the lien priority of the Mortgage is not jeopardized (or, with respect
to
the payment of taxes, in a manner and at a time that avoids the loss of the
Mortgaged Property due to a tax sale or the foreclosure as a result of a tax
lien); (ii) reimburse Ocwen (or a Sub-Servicer to the extent provided in the
related Sub-Servicing Agreement) out of related collections for any Servicing
Advances made pursuant to Section 3.01 (with respect to taxes and assessments)
and Section 3.14 (with respect to hazard insurance); (iii) refund to Mortgagors
any sums as may be determined to be overages; (iv) pay interest, if required
and
as described below, to Mortgagors on balances in the Servicing Account; or
(v)
clear and terminate the Servicing Account at the termination of Ocwen’s
obligations and responsibilities in respect of the Ocwen Mortgage Loans under
this Agreement in accordance with Article X. In the event Ocwen shall deposit
in
a Servicing Account any amount not required to be deposited therein, it may
at
any time withdraw such amount from such Servicing Account, any provision herein
to the contrary notwithstanding. Ocwen will be responsible for the
administration of the Servicing Accounts and will be obligated to make Servicing
Advances to such accounts when and as necessary to avoid the lapse of insurance
coverage on the Mortgaged Property, or which Ocwen knows, or in the exercise
of
the required standard of care of Ocwen hereunder should know, is necessary
to
avoid the loss of the Mortgaged Property due to a tax sale or the foreclosure
as
a result of a tax lien. If any such payment has not been made and Ocwen receives
notice of a tax lien with respect to the Mortgage being imposed, Ocwen will,
within a reasonable time following receipt of such notice, advance or cause
to
be advanced funds necessary to discharge such lien on the Mortgaged Property.
As
part of its servicing duties, Ocwen or Sub-Servicers shall pay to the Mortgagors
interest on funds in the Servicing Accounts, to the extent required by law
and,
to the extent that interest earned on funds in the Servicing Accounts is
insufficient, to pay such interest from its or their own funds, without any
reimbursement therefor. Ocwen may pay to itself any excess interest on funds
in
the Servicing Accounts, to the extent such action is in conformity with the
Servicing Standard, is permitted by law and such amounts are not required to
be
paid to Mortgagors or used for any of the other purposes set forth
above.
| SECTION 3.10 |
Collection
Account.
|
(a) On
behalf
of the Trust Fund, Ocwen shall establish and maintain, or cause to be
established and maintained, one or more accounts (such account or accounts,
the
“Collection Account”), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, Ocwen shall deposit or cause
to
be deposited in the clearing account in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
Ocwen’s receipt thereof, and shall thereafter deposit in the Collection Account,
in no event more than two Business Days after Ocwen’s receipt thereof, as and
when received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than
in
respect of principal or interest on the Ocwen Mortgage Loans due on or before
the Cut-off Date) or payments (other than Principal Prepayments) received by
it
on or prior to the Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all
payments on account of principal, including Principal Prepayments (but not
Prepayment Charges), on the Ocwen Mortgage Loans;
(ii) all
payments on account of interest (net of the Servicing Fee) on each Ocwen
Mortgage Loan;
(iii) all
Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries and condemnation
proceeds (other than proceeds collected in respect of any particular REO
Property and amounts paid in connection with a purchase of Ocwen Mortgage Loans
and related REO Properties pursuant to Section 10.01);
(iv) any
amounts required to be deposited pursuant to Section 3.12 in connection with
any
losses realized on Permitted Investments with respect to funds held in the
Collection Account;
(v) any
amounts required to be deposited by Ocwen pursuant to the second paragraph
of
Section 3.14(a) in respect of any blanket policy deductibles;
(vi) all
proceeds of any Ocwen Mortgage Loan repurchased or purchased in accordance
with
Section 2.03, Section 3.16(c) or Section 10.01;
(vii) all
amounts required to be deposited in connection with Substitution Adjustments
pursuant to Section 2.03; and
(viii) all
Prepayment Charges collected by Ocwen and any Servicer Prepayment Charge Payment
Amounts in connection with the Principal Prepayment of any of the Ocwen Mortgage
Loans.
The
foregoing requirements for deposit in the Collection Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of Servicing Fees, late payment charges,
assumption fees, insufficient funds charges, Prepayment Interest Excess and
ancillary income (other than Prepayment Charges) on the Ocwen Mortgage Loans
need not be deposited by Ocwen in the Collection Account and may be retained
by
Ocwen as additional compensation. In the event Ocwen shall deposit in the
Collection Account any amount not required to be deposited therein, it may
at
any time withdraw such amount from the Collection Account, any provision herein
to the contrary notwithstanding.
(b) Funds
in
the Collection Account may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. Ocwen shall give written notice
to the Trust Administrator and the Master Servicer of the location of the
Collection Account maintained by it when established and prior to any change
thereof. The Trust Administrator will then provide timely written notice to
the
Depositor and the Trustee.
(c) Funds
held in the Collection Account at any time may be delivered by Ocwen to the
Trust Administrator for deposit in an account (which may be the Distribution
Account and must satisfy the standards for the Distribution Account as set
forth
in the definition thereof) and for all purposes of this Agreement shall be
deemed to be a part of the Collection Account; provided, however, that the
Trust
Administrator shall have the sole authority to withdraw any funds held pursuant
to this subsection (c). In the event Ocwen shall deliver to the Trust
Administrator for deposit in the Distribution Account any amount not required
to
be deposited therein, it may at any time request that the Trust Administrator
withdraw such amount from the Distribution Account and remit to it any such
amount, any provision herein to the contrary notwithstanding. In addition,
Ocwen, with respect to items (i) through (iv) below, shall deliver to the Trust
Administrator from time to time for deposit, and the Trust Administrator, with
respect to items (i) through (iv) below, shall so deposit, in the Distribution
Account:
(i) any
Advances, as required pursuant to Section 4.04;
(ii) any
amounts required to be deposited pursuant to Section 3.23(d) or (f) in
connection with any REO Property;
(iii) any
amounts to be paid by Ocwen in connection with a purchase of Ocwen Mortgage
Loans and related REO Properties pursuant to Section 10.01;
(iv) any
Compensating Interest to be deposited pursuant to Section 3.24 in connection
with any Prepayment Interest Shortfall; and
(v) any
amounts required to be paid to the Trust Administrator pursuant to the
Agreement, including, but not limited to Section 3.06 and Section
7.02.
| SECTION 3.11 |
Withdrawals
from the Collection Account.
|
Ocwen
shall, from time to time, make withdrawals from the Collection Account for
any
of the following purposes, without priority, or as described in Section
4.03:
(i) to
remit
to the Trust Administrator on the Servicer Remittance Date for deposit in the
Distribution Account the amounts required to be so remitted pursuant to Section
3.10(b) or permitted to be so remitted pursuant to the first sentence of Section
3.10(c);
(ii) subject
to Section 3.16(d), to reimburse Ocwen for (a) any unreimbursed Advances to
the
extent of amounts received which represent Late Collections (net of the related
Servicing Fees), Liquidation Proceeds and Insurance Proceeds on Ocwen Mortgage
Loans or related REO Properties with respect to which such Advances were made
in
accordance with the provisions of Section 4.04; or (b) without limiting any
right of withdrawal set forth in clause (vi) below, any unreimbursed Advances
that, upon a Final Recovery Determination with respect to such Ocwen Mortgage
Loan, are Nonrecoverable Advances, but only to the extent that Late Collections
(net of the related Servicing Fees), Liquidation Proceeds and Insurance Proceeds
received with respect to such Ocwen Mortgage Loan are insufficient to reimburse
Ocwen for such unreimbursed Advances;
(iii) subject
to Section 3.16(d), to pay Ocwen or any Sub-Servicer (a) any unpaid Servicing
Fees, (b) any unreimbursed Servicing Advances with respect to each Ocwen
Mortgage Loan, but only to the extent of any Late Collections, Liquidation
Proceeds and Insurance Proceeds received with respect to such Ocwen Mortgage
Loan or related REO Property, and (c) without limiting any right of withdrawal
set forth in clause (vi) below, any Servicing Advances made with respect to
an
Ocwen Mortgage Loan that, upon a Final Recovery Determination with respect
to
such Ocwen Mortgage Loan are Nonrecoverable Advances, but only to the extent
that Late Collections, Liquidation Proceeds and Insurance Proceeds received
with
respect to such Ocwen Mortgage Loan are insufficient to reimburse Ocwen or
any
Sub-Servicer for Servicing Advances;
(iv) to
pay to
Ocwen as servicing compensation (in addition to the Servicing Fee) on a Servicer
Remittance Date any interest or investment income earned on funds deposited
in
the Collection Account;
(v) to
pay to
Ocwen or the Seller, as the case may be, with respect to each Ocwen Mortgage
Loan that has previously been purchased or replaced pursuant to Section 2.03
or
Section 3.16(c) all amounts received thereon subsequent to the date of purchase
or substitution, as the case may be;
(vi) to
reimburse Ocwen for any Advance or Servicing Advance previously made which
Ocwen
has determined to be a Nonrecoverable Advance or Nonrecoverable Servicing
Advance in accordance with the provisions of Section 4.03;
(vii) to
reimburse Ocwen, the Master Servicer or the Depositor for expenses incurred
by
or reimbursable to Ocwen, the Master Servicer or the Depositor, as the case
may
be, pursuant to Section 6.03;
(viii) to
reimburse Ocwen, the Trust Administrator, the Master Servicer or the Trustee,
as
the case may be, for expenses reasonably incurred in respect of the breach
or
defect giving rise to the purchase obligation under Section 2.03 of this
Agreement that were included in the Purchase Price of the Ocwen
Mortgage
Loan, including any expenses arising out of the enforcement of the purchase
obligation;
(ix) to
reimburse Ocwen for any unpaid Servicing Fees to the extent not recoverable
from
Late Collections, Liquidation Proceeds or Insurance Proceeds received with
respect to the related Ocwen Mortgage Loan under Section 3.11(iii);
(x) to
pay,
or to reimburse Ocwen for advances in respect of expenses incurred in connection
with any Ocwen Mortgage Loan pursuant to Section 3.16(b);
(xi) to
pay
itself any Prepayment Interest Excess; and
(xii) to
clear
and terminate the Collection Account pursuant to Section 9.01.
The
foregoing requirements for withdrawal from the Collection Account shall be
exclusive. In the event Ocwen shall deposit in the Collection Account any amount
not required to be deposited therein, it may at any time withdraw such amount
from the Collection Account, any provision herein to the contrary
notwithstanding.
With
respect to the Ocwen Mortgage Loans, Ocwen shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any withdrawal from the Collection Account, to the extent held by
or
on behalf of it, pursuant to subclauses (ii), (iii), (iv), (v), (vi), (viii)
and
(ix) above. Ocwen shall provide written notification to the Trust Administrator,
on or prior to the next succeeding Servicer Remittance Date, upon making any
withdrawals from the Collection Account pursuant to subclause (vi) above;
provided that a Servicing Officer certification in the form described under
Section 4.04(d) shall suffice for such written notification to the Trustee
in
respect hereof.
| SECTION 3.12 |
Investment
of Funds in the Collection Account.
|
(a) Ocwen
may
direct any depository institution maintaining the Collection Account and any
REO
Account (for purposes of this Section 3.12, such account an “Investment
Account”) to invest the funds in such Investment Account in one or more
Permitted Investments specified in such instruction bearing interest or sold
at
a discount, and maturing, unless payable on demand, (i) no later than the
Business Day immediately preceding the date on which such funds are required
to
be withdrawn from such account pursuant to this Agreement, if a Person other
than the Trust Administrator is the obligor thereon, and (ii) no later than
the
date on which such funds are required to be withdrawn from such account pursuant
to this Agreement, if the Trust Administrator is the obligor thereon. All such
Permitted Investments shall be held to maturity, unless payable on demand.
Any
investment of funds in an Investment Account shall be made in the name of the
Trust Administrator (in its capacity as such) or in the name of a nominee of
the
Trust Administrator. The Trust Administrator shall be entitled to sole
possession (except with respect to investment direction of funds held in any
Investment Account and any income and gain realized thereon) over each such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Trust Administrator or its agent,
together with any document of transfer necessary to transfer title to such
investment to the Trust Administrator or its nominee. In the event amounts
on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Trust Administrator shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by a
Responsible Officer of the Trust Administrator that such Permitted Investment
would not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Investment Account.
(b) All
income and gain realized from the investment of funds deposited in the
Collection Account and any REO Account held by or on behalf of Ocwen, shall
be
for the benefit of Ocwen and shall be subject to its withdrawal in accordance
with Section 3.11 or Section 3.23, as applicable. Ocwen shall deposit in the
Collection Account or any REO Account, as applicable, the amount of any loss
of
principal incurred in respect of any such Permitted Investment made with funds
in such accounts immediately upon realization of such loss.
(c) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trust
Administrator may and, subject to Section 8.01 and Section 8.02(a)(v), upon
the
request of the Holders of Certificates representing more than 50% of the Voting
Rights allocated to any Class of Certificates, shall take such action as may
be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings.
(d) The
Trust
Administrator is hereby directed to invest all amounts on deposit in the
Distribution Account during the Float Period in Permitted Investments of
the
type set forth in clause (vi) of the definition thereof. All such amounts
in the
Distribution Account shall be invested in the Xxxxx Fargo Advantage Government
Money Market Fund. All income and gain realized from the investment of funds
deposited in the Distribution Account during the Float Period shall be
distributed to the Holders of the Class FL Certificates (the “Class FL Holder”)
as set forth in Section 4.01(h) for the next Distribution Date. The Class
FL
Holder shall deposit in the Distribution Account, from its own funds, the
amount
of any loss of principal incurred in respect of any such Permitted Investment
made with funds in the Distribution Account during the Float Period immediately
upon notification of such loss.
| SECTION 3.13 |
[Reserved].
|
| SECTION 3.14 |
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
Ocwen
shall cause to be maintained for each Ocwen
Mortgage
Loan hazard insurance with extended coverage on the Mortgaged Property in an
amount which is at least equal to the lesser of the current principal balance
of
such Ocwen Mortgage Loan and the amount necessary to fully compensate for any
damage or loss to the improvements which are a part of such property on a
replacement cost basis, in each case in an amount not less than such amount
as
is necessary to avoid the application of any coinsurance clause contained in
the
related hazard insurance policy. Ocwen shall also cause to be maintained hazard
insurance with extended coverage on each REO Property serviced by it in an
amount which is at least equal to the lesser of (i) the maximum insurable value
of the improvements which are a part of such property and (ii) the outstanding
Principal Balance of the related Ocwen Mortgage Loan at the time it became
an
REO Property. Ocwen will comply in the performance of this Agreement with all
reasonable rules and requirements of each insurer under any such hazard
policies. Any amounts to be collected by Ocwen under any such policies (other
than amounts to be applied to the restoration or repair of the property subject
to the related Mortgage or amounts to be released to the Mortgagor in accordance
with the procedures that Ocwen would follow in servicing loans held for its
own
account, subject to the terms and conditions of the related Mortgage and
Mortgage Note) shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 3.11, if received in respect of an Ocwen Mortgage
Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.23,
if
received in respect of an REO Property. Any cost incurred by Ocwen in
maintaining any such insurance shall not, for the purpose of calculating
distributions to Certificateholders, be added to the unpaid principal balance
of
the related Ocwen Mortgage Loan, notwithstanding that the terms of such Ocwen
Mortgage Loan so permit; provided, however, that, subject to Section 3.07,
Ocwen
may capitalize the amount of any Servicing Advances incurred pursuant to this
Section 3.14 in connection with the modification of an Ocwen Mortgage Loan.
It
is understood and agreed that no earthquake or other additional insurance is
to
be required of any Mortgagor other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. If the Mortgaged Property or REO Property is at any time
in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards and flood insurance has been
made available, Ocwen will cause to be maintained a flood insurance policy
in
respect thereof. Such flood insurance shall be in an amount equal to the lesser
of (i) the unpaid Principal Balance of the related Ocwen Mortgage Loan and
(ii)
the maximum amount of such insurance available for the related Mortgaged
Property under the national flood insurance program (assuming that the area
in
which such Mortgaged Property is located is participating in such program).
If
at any time during the term of the Ocwen Mortgage Loan, Ocwen determines, in
accordance with applicable law, that a Mortgaged Property is located in a
special flood hazard area and is not covered by flood insurance or is covered
in
an amount less than the amount required by the Flood Disaster Protection Act
of
1973, as amended, Ocwen shall notify the related Mortgagor that the Mortgagor
must obtain such flood insurance coverage, and if said Mortgagor fails to obtain
the required flood insurance coverage within forty-five (45) days after such
notification, Ocwen shall immediately force place the required flood insurance
on the Mortgagor’s behalf.
In
the
event that Ocwen shall obtain and maintain a blanket policy insuring against
hazard losses on all of the Ocwen Mortgage Loans, it shall conclusively be
deemed to have satisfied its obligations as set forth in the first two sentences
of this Section 3.14, it being understood and agreed that such policy may
contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by competent servicers, in which case
Ocwen shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy complying with the first
two
sentences of this Section 3.14, and there shall have been one or more losses
which would have been covered by such policy, deposit to the Collection Account
from its own funds the amount not otherwise payable under the blanket policy
because of such deductible clause. In connection with its activities as
administrator and servicer of the Ocwen Mortgage Loans, Ocwen agrees to prepare
and present, on behalf of itself, the Trustee, the Trust Fund and the
Certificateholders, claims under any such blanket policy in a timely fashion
in
accordance with the terms of such policy.
Ocwen
shall keep in force during the term of this Agreement a policy or policies
of
insurance covering errors and omissions for failure in the performance of its
respective obligations under this Agreement, which policy or policies shall
be
in such form and amount that would meet the requirements of Xxxxxx Mae or
Xxxxxxx Mac if it were the purchaser of the Ocwen Mortgage Loans, unless Ocwen
has obtained a waiver of such requirements from Xxxxxx Mae or Xxxxxxx Mac.
Ocwen
shall also maintain a fidelity bond in the form and amount that would meet
the
requirements of Xxxxxx Mae or Xxxxxxx Mac, unless Ocwen has obtained a waiver
of
such requirements from Xxxxxx Mae or Xxxxxxx Mac. Ocwen shall be deemed to have
complied with this provision if an Affiliate of Ocwen has such errors and
omissions and fidelity bond coverage and, by the terms of such insurance policy
or fidelity bond, the coverage afforded thereunder extends to Ocwen. Any such
errors and omissions policy and fidelity bond shall by its terms not be
cancelable without thirty days’ prior written notice to the Trustee and the
Trust Administrator.
Ocwen
shall also cause each Sub-Servicer to maintain a policy of insurance covering
errors and omissions and a fidelity bond which would meet such requirements
and
shall provide to the Master Servicer evidence of the authorization of the person
signing any certification, statement, financial information and reports or
such
other information related to Ocwen or any Sub-Servicer or to Ocwen’s or such
Sub-Servicer’s performance hereunder.
| SECTION 3.15 |
Enforcement
of Due-On-Sale Clauses; Assumption
Agreements.
|
With
respect to the Ocwen Mortgage Loans, Ocwen will, to the extent it has knowledge
of any conveyance or prospective conveyance of any Mortgaged Property by any
Mortgagor (whether by absolute conveyance or by contract of sale, and whether
or
not the Mortgagor remains or is to remain liable under the Mortgage Note and/or
the Mortgage), exercise its rights to accelerate the maturity of such Ocwen
Mortgage Loan under the “due-on-sale” clause, if any, applicable thereto;
provided, however, that Ocwen shall not be required to take such action if
in
its sole business judgment Ocwen believes it is not in the best interests of
the
Trust Fund and shall not exercise any such rights if prohibited by law from
doing so. If Ocwen reasonably believes it is unable under applicable law to
enforce such “due-on-sale” clause, or if any of the other conditions set forth
in the proviso to the preceding sentence apply, Ocwen will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which
such
person becomes liable under the Mortgage Note and, to the extent permitted
by
applicable state law, the Mortgagor remains liable thereon. Ocwen is also
authorized, to the extent permitted under the related Mortgage Note, to enter
into a substitution of liability agreement with such person, pursuant to which
the original Mortgagor is released from liability and such person is substituted
as the Mortgagor and becomes liable under the Mortgage Note, provided that
no
such substitution shall be effective unless such person satisfies the current
underwriting criteria of Ocwen for a mortgage loan similar to the related Ocwen
Mortgage Loan. In connection with any assumption, modification or substitution,
Ocwen shall apply such underwriting standards and follow such practices and
procedures as shall be normal and usual in its general mortgage servicing
activities and as it applies to other mortgage loans owned solely by it. Ocwen
shall not take or enter into any assumption and modification agreement, however,
unless (to the extent practicable in the circumstances) it shall have received
confirmation, in writing, of the continued effectiveness of any applicable
hazard insurance policy. Any fee collected by Ocwen in respect of an assumption,
modification or substitution of liability agreement shall be retained by Ocwen
as additional servicing compensation. In connection with any such assumption,
no
material term of the Mortgage Note (including but not limited to the related
Mortgage Rate and the amount of the Monthly Payment) may be amended or modified,
except as otherwise required pursuant to the terms thereof. Ocwen shall notify
the Trustee, the Master Servicer, the Trust Administrator and the related
Custodian that any such substitution, modification or assumption agreement
has
been completed by forwarding to the related Custodian the executed original
of
such substitution or assumption agreement, which document shall be added to
the
related Mortgage File and shall, for all purposes, be considered a part of
such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, Ocwen shall
not be deemed to be in default, breach or any other violation of its obligations
hereunder by reason of any assumption of an Ocwen Mortgage Loan by operation
of
law or by the terms of the Mortgage Note or any assumption which Ocwen may
be
restricted by law from preventing, for any reason whatsoever. For purposes
of
this Section 3.15, the term “assumption” is deemed to also include a sale (of
the Mortgaged Property) subject to the Mortgage that is not accompanied by
an
assumption or substitution of liability agreement.
| SECTION 3.16 |
Realization
Upon Defaulted Mortgage Loans.
|
(a) (i)Ocwen
shall use its reasonable efforts, consistent with the Servicing Standard, to
foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Ocwen Mortgage Loans as come into and continue in default
and as to which no satisfactory arrangements can be made for collection of
delinquent payments pursuant to Section 3.07. Ocwen shall be responsible for
all
costs and expenses incurred by it in any such proceedings; provided, however,
that such costs and expenses will be recoverable as Servicing Advances by Ocwen
as contemplated in Section 3.11 and Section 3.23. The foregoing is subject
to
the provision that, in any case in which a Mortgaged Property shall have
suffered damage from an Uninsured Cause, Ocwen shall not be required to expend
its own funds toward the restoration of such property unless it shall determine
in its discretion that such restoration will increase the proceeds of
liquidation of the related Ocwen Mortgage Loan after reimbursement to itself
for
such expenses.
(ii) With
respect to any second lien Ocwen Mortgage Loan, if Ocwen determines that no
significant recovery is possible through foreclosure proceedings or other
liquidation of the related Mortgage Property it may elect to charge off the
related Ocwen Mortgage Loan (each such Ocwen Mortgage Loan, a “Charged Off
Loan”) at the time the related first lien mortgage loan has been liquidated or
at any time thereafter; provided, however, if a second lien Ocwen Mortgage
Loan
is 365 days Delinquent and the related first lien mortgage loan is not in
foreclosure, such Ocwen Mortgage Loan will be charged off immediately.
Each
Charged Off Loan will be serviced in accordance with the terms of this Agreement
until the date of charge off. Once such an Ocwen Mortgage Loan has been charged
off, Ocwen will discontinue making Advances, Ocwen will not be entitled to
any
additional servicing compensation (subject to paragraph (a)(iii) below), the
Charged Off Loan will give rise to a Realized Loss, and Ocwen will follow the
procedures described in paragraph (a)(iii) below.
(iii) Ocwen
will not be entitled to any Servicing Fees or reimbursement of expenses in
connection with such Charged Off Loans except to the extent of funds available
from the aggregate amount of recoveries on such Charged Off Loan which shall
be
paid to Ocwen as any accrued and unpaid Servicing Fees and reimbursement of
expenses. Ocwen will only be entitled to previously accrued Servicing Fees
on
any such Charged Off Loans and will not be entitled to receive any future
unaccrued Servicing Fees or expenses from collections on such Charged Off Loans.
Any recoveries on such Charged Off Loans (net of accrued and unpaid Servicing
Fees for the number of full Monthly Payments collected and out-of-pocket
expenses) will be treated as Liquidation Proceeds distributable by the Trustee
to the Holders of the Class X Certificates pursuant to Section
4.01(c)(vii).
Upon
the
request of the majority Holder of the Class X Certificates, any Charged Off
Loan
will be transferred to such Holder, without recourse (a “Released Loan”) and
thereafter (i) those Holders will be entitled to any amounts subsequently
received in respect of any such Charged Off Loans, (ii) the Holders of the
Class
X Certificates may designate any servicer to service any such Released Loan
and
(iii) the Holders of the Class X Certificates may sell any such Charged Off
Loan
to a third party. With respect to any Released Loan, the Trustee or the related
Custodian, upon receipt of a Request for Release, shall release to the majority
Holder of the Class X Certificates the related Mortgage File and shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as shall be furnished to it and as shall be necessary to vest in
the
majority Holder of the Class X Certificates any Released Loan and the Trustee
shall have no further responsibility with regard to such Mortgage File (it
being
understood that the Trustee shall have no responsibility for determining the
sufficiency of such assignment for its intended purpose).
Notwithstanding
the foregoing, the procedures described above in this subsection 3.16(a)(iii)
relating to the treatment of Charged Off Loans may be modified at any time
at
the discretion of the Holders of a majority Percentage Interest of the Class
X
Certificates, with the reasonable consent of Ocwen.
(b) Notwithstanding
the foregoing provisions of this Section 3.16 or any other provision of this
Agreement, with respect to any Ocwen Mortgage Loan as to which Ocwen has
received actual notice of, or has actual knowledge of, the presence of any
toxic
or hazardous substance on the related Mortgaged Property, Ocwen shall not,
on
behalf of the Trustee, either (i) obtain title to such Mortgaged Property as
a
result of or in lieu of foreclosure or otherwise, or (ii) otherwise acquire
possession of, or take any other action with respect to, such Mortgaged
Property, if, as a result of any such action, the Trustee, the Trust Fund,
the
Trust Administrator, Ocwen or the Certificateholders would be considered to
hold
title to, to be a “mortgagee-in-possession” of, or to be an “owner” or
“operator” of such Mortgaged Property within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
from
time to time, or any comparable law, unless Ocwen has also previously
determined, based on its reasonable judgment and a report prepared by a Person
who regularly conducts environmental audits using customary industry standards,
that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Trust Fund to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect to the
affected Mortgaged Property.
The
cost
of the environmental audit report contemplated by this Section 3.16 shall be
advanced by Ocwen, subject to Ocwen’s right to be reimbursed therefor from the
Collection Account as provided in Section 3.11 (ix), such right of reimbursement
being prior to the rights of Certificateholders to receive any amount in the
Collection Account received in respect of the affected Ocwen Mortgage Loan
or
other Ocwen Mortgage Loans.
If
Ocwen
determines, as described above, that it is in the best economic interest of
the
Trust Fund to take such actions as are necessary to bring any such Mortgaged
Property into compliance with applicable environmental laws, or to take such
action with respect to the containment, clean-up or remediation of hazardous
substances, hazardous materials, hazardous wastes or petroleum-based materials
affecting any such Mortgaged Property, then Ocwen shall take such action as
it
deems to be in the best economic interest of the Trust Fund; provided that
any
amounts disbursed by Ocwen pursuant to this Section 3.16(b) shall constitute
Servicing Advances, subject to Section 4.04(d). The cost of any such compliance,
containment, cleanup or remediation shall be advanced by Ocwen, subject to
Ocwen’s right to be reimbursed therefor from the Collection Account as provided
in Section 3.11 (ix), such right of reimbursement being prior to the rights
of
Certificateholders to receive any amount in the Collection Account received
in
respect of the affected Ocwen Mortgage Loan or other Ocwen Mortgage
Loans.
(c) Ocwen
may, at its option, purchase an Ocwen Mortgage Loan which has become 90 or
more
days delinquent or for which Ocwen has accepted a deed in lieu of foreclosure.
Prior to purchase pursuant to this Section 3.16(c), Ocwen shall be required
to
continue to make Advances pursuant to Section 4.04. Ocwen shall not use any
procedure in selecting Ocwen Mortgage Loans to be repurchased which is
materially adverse to the interests of the Certificateholders. Ocwen shall
purchase such delinquent Ocwen Mortgage Loan at a price equal to the Purchase
Price of such Ocwen Mortgage Loan. Any such purchase of an Ocwen Mortgage Loan
pursuant to this Section 3.16(c) shall be accomplished by deposit in the
Collection Account of the amount of the Purchase Price. Upon the satisfaction
of
the requirements set forth in Section 3.17(a), the Trustee shall immediately
deliver the Mortgage File and any related documentation to Ocwen and will
execute such documents provided to it as are necessary to convey the Ocwen
Mortgage Loan to Ocwen.
(d) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds, Liquidation
Proceeds or condemnation proceeds, in respect of any Ocwen Mortgage Loan, will
be applied in the following order of priority: first, to unpaid Servicing Fees;
second, to reimburse Ocwen or any Sub-Servicer for any related unreimbursed
Servicing Advances pursuant to Section 3.11(iii) and Advances pursuant to
Section 3.11(ii); third, to accrued and unpaid interest on the Ocwen Mortgage
Loan, to the date of the Final Recovery Determination, or to the Due Date prior
to the Distribution Date on which such amounts are to be distributed if not
in
connection with a Final Recovery Determination; and fourth, as a recovery of
principal of the Ocwen Mortgage Loan. If the amount of the recovery so allocated
to interest is less than the full amount of accrued and unpaid interest due
on
such Ocwen Mortgage Loan, the amount of such recovery will be allocated by
Ocwen
as follows: first, to unpaid Servicing Fees; and second, to the balance of
the
interest then due and owing. The portion of the recovery so allocated to unpaid
Servicing Fees shall be reimbursed to Ocwen or any Sub-Servicer pursuant to
Section 3.11(iii).
| SECTION 3.17 |
Trustee
to Cooperate; Release of Mortgage
Files.
|
(a) Upon
the
payment in full of any Ocwen Mortgage Loan, or the receipt by Ocwen of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, Ocwen shall deliver to the Trustee, in written (with two executed
copies) or electronic format, a Request for Release in the form of Exhibit
E
hereto (which certification shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Collection Account pursuant to Section 3.10
have
been or will be so deposited) signed by a Servicing Officer (or in a mutually
agreeable electronic format that will, in lieu of a signature on its face,
originate from a Servicing Officer) and shall request delivery to it or its
designee of the Mortgage File. Upon receipt of such certification and request,
the Trustee shall, within five Business Days, release the related Mortgage
File
to Ocwen or its designee (which shall be sent by overnight mail at Ocwen’s
expense) and Ocwen is authorized to cause the removal from the registration
on
the MERS® System of any such Ocwen Mortgage Loan, if applicable. Except as
otherwise provided herein, no expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Collection Account or the Distribution Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Ocwen
Mortgage Loan, including, for this purpose, collection under any insurance
policy relating to the Ocwen Mortgage Loans, the Trustee shall, upon any request
made by or on behalf of Ocwen and delivery to the Trustee, in written (with
two
executed copies) or electronic format, of a Request for Release in the form
of
Exhibit E hereto signed by a Servicing Officer (or in a mutually agreeable
electronic format that will, in lieu of a signature on its face, originate
from
a Servicing Officer), release the related Mortgage File to Ocwen or its designee
within five Business Days, and the Trustee shall, at the written direction
of
Ocwen, execute such documents provided to it by Ocwen as shall be necessary
to
the prosecution of any such proceedings. Such Request for Release shall obligate
Ocwen to return each and every document previously requested from the Mortgage
File to the Trustee when the need therefor by Ocwen no longer exists, unless
the
Ocwen Mortgage Loan has been liquidated and the Liquidation Proceeds relating
to
the Ocwen Mortgage Loan have been deposited in the Collection Account or the
Mortgage File or such document has been delivered to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and Ocwen has delivered,
or caused to be delivered, to the Trustee an additional Request for Release
certifying as to such liquidation or action or proceedings. Upon the request
of
the Trustee, Ocwen shall provide notice to the Trustee of the name and address
of the Person to which such Mortgage File or such document was delivered and
the
purpose or purposes of such delivery. Upon receipt of a Request for Release,
in
written (with two executed copies) or electronic format (or in a mutually
agreeable electronic format that will, in lieu of a signature on its face,
originate from a Servicing Officer), from a Servicing Officer stating that
such
Ocwen Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account have been so deposited, or that such Ocwen Mortgage
Loan has become an REO Property, such Ocwen Mortgage Loan shall be released
by
the Trustee to Ocwen or its designee within five Business Days.
(c) Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to Ocwen and the Sub-Servicer, as the case may be, copies of any court
pleadings, requests for trustee’s sale or other documents reasonably necessary
to the foreclosure or trustee’s sale in respect of a Mortgaged Property or to
any legal action brought to obtain judgment against any Mortgagor on the
Mortgage Note or Mortgage or to obtain a deficiency judgment, or to enforce
any
other remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity. Each such certification shall include a request
that such pleadings or documents be executed by the Trustee and a statement
as
to the reason such documents or pleadings are required and that the execution
and delivery thereof by the Trustee will not invalidate or otherwise affect
the
lien of the Mortgage, except for the termination of such a lien upon completion
of the foreclosure or trustee’s sale.
| SECTION 3.18 |
Servicing
Compensation.
|
As
compensation for its activities hereunder, Ocwen shall be entitled to the
Servicing Fee with respect to each Ocwen Mortgage Loan payable solely from
payments of interest in respect of such Ocwen Mortgage Loan, subject to Section
3.24. In addition, Ocwen shall be entitled to recover unpaid Servicing Fees
out
of Insurance Proceeds, Liquidation Proceeds or condemnation proceeds to the
extent permitted by Section 3.11(iii) and out of amounts derived from the
operation and sale of an REO Property serviced by it to the extent permitted
by
Section 3.23. Except as provided in Section 3.29 or Section 6.04, the right
to
receive the Servicing Fee may not be transferred in whole or in part except
in
connection with the transfer of all of Ocwen’s responsibilities and obligations
under this Agreement; provided, however, that Ocwen may pay from the Servicing
Fee any amounts due to a Sub-Servicer pursuant to a Sub-Servicing Agreement
entered into under Section 3.02.
Additional
servicing compensation in the form of assumption fees, late payment charges,
insufficient funds charges, ancillary income or otherwise (other than Prepayment
Charges) shall be retained by Ocwen only to the extent such fees or charges
are
received by Ocwen. Ocwen shall also be entitled pursuant to Section 3.11(iv)
to
withdraw from the Collection Account and pursuant to Section 3.23(b) to withdraw
from any REO Account, as additional servicing compensation, interest or other
income earned on deposits therein, subject to Section 3.12 and Section 3.24.
Ocwen shall also be entitled to receive Prepayment Interest Excess pursuant
to
Section 3.10 and Section 3.11 as additional servicing compensation. Ocwen shall
be required to pay all expenses incurred by it in connection with its servicing
activities hereunder (including premiums for the insurance required by Section
3.14, to the extent such premiums are not paid by the related Mortgagors or
by a
Sub-Servicer, and servicing compensation of each Sub-Servicer) and shall not
be
entitled to reimbursement therefor except as specifically provided
herein.
| SECTION 3.19 |
Reports;
Collection Account Statements.
|
Not
later
than twenty days after each Distribution Date, Ocwen shall forward, upon
request, to the Trust
Administrator
and the
Depositor the most current available bank statement for the Collection Account.
Copies of such statement shall be provided by the Trust Administrator to any
Certificateholder and to any Person identified to the Trust Administrator as
a
prospective transferee of a Certificate, upon request and at the expense of
the
requesting party, provided such statement is delivered by Ocwen to the Trust
Administrator.
| SECTION 3.20 |
Statement
as to Compliance.
|
On
or
before March 15th
of each
calendar year (with no cure period), commencing in 2008, Ocwen shall deliver
or
otherwise make available to the Trust Administrator and
the
Master Servicer
a
statement of compliance addressed to the Master Servicer and the Depositor
and
signed by an authorized officer of Ocwen, to the effect that (a) a review of
Ocwen’s activities during the immediately preceding calendar year (or applicable
portion thereof) and of its performance under this Agreement during such period
has been made under such officer’s supervision, and (b) to the best of such
officers’ knowledge, based on such review, Ocwen has fulfilled all of its
obligations under this Agreement in all material respects throughout such
calendar year (or applicable portion thereof) or, if there has been a failure
to
fulfill any such obligation in any material respect, specifically identifying
each such failure known to such officer and the nature and the status thereof.
Ocwen
shall deliver, or cause to be delivered, a similar Annual Statement of
Compliance by any Sub-Servicer, Subcontractor or other Person engaged by it
and
satisfying any of the criteria set forth in Item 1108(a)(i), (ii) or (iii),
to
which Ocwen has delegated any servicing responsibilities with respect to the
Ocwen Mortgage Loans, to the Trust Administrator as described above as and
when
required with respect to Ocwen.
Each
of
the Master Servicer and Trust Administrator shall deliver, or cause to be
delivered, a similar Annual Statement of Compliance by any Sub-Servicer,
Subcontractor or other Person engaged by it and satisfying any of the criteria
set forth in Item 1108(a)(i), (ii) or (iii), to which the Master Servicer has
delegated any servicing responsibilities with respect to the Ocwen Mortgage
Loans, to the Trust Administrator as described above as and when required with
respect to the Master Servicer.
Each
of
the Master Servicer and the Trust Administrator shall also provide an Annual
Statement of Compliance, as and when provided above.
Each
of
Ocwen, the Master Servicer and the Trust Administrator (each, an “Indemnifying
Party”) shall indemnify and hold harmless the Depositor, the Master Servicer,
Ocwen, the Trust Administrator and their officers, directors and Affiliates,
as
applicable, from and against any actual losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses that such Person may sustain based upon a breach
of
the obligations of such Indemnifying Party under this Section 3.20.
| SECTION 3.21 |
Assessments
of Compliance and Attestation
Reports.
|
(A) On
or
before March 15th
of each
calendar year (with no cure period), commencing in 2008, Ocwen
shall:
(i) deliver
to the Trust Administrator and the Master Servicer a report (in form and
substance reasonably satisfactory to the Depositor, the Master Servicer and
the
Trust Administrator) regarding Ocwen’s assessment of compliance with the
Relevant Servicing Criteria during the immediately preceding calendar year,
as
required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to the Master Servicer and the
Depositor and signed by an authorized officer of Ocwen and shall address each
of
the Relevant Servicing Criteria specified substantially on Exhibit S hereto
(or
those Servicing Criteria otherwise mutually agreed to by the Depositor, the
Master Servicer and Ocwen in response to evolving interpretations of Regulation
AB;
(ii) deliver
to the Trust Administrator and the Master Servicer a report of a registered
public accounting firm reasonably acceptable to the Master Servicer, the
Depositor and the Trust Administrator that attests to, and reports on, the
assessment of the compliance made by Ocwen and delivered pursuant to the
.preceding paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act;
(iii) cause
each Sub-Servicer and each Subcontractor, determined by Ocwen pursuant to
Section 4.24(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Trust Administrator,
the Master Servicer and the Depositor an assessment of compliance and
accountants’ attestation as and when provided in paragraphs (i) and (ii) of this
Section 3.21; and
(iv) pursuant
to Section 4.05(a)(iv), deliver, and cause each Sub-Servicer and each
Subcontractor, determined by Ocwen pursuant to Section 4.24(b) to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, to deliver to the Master Servicer a certification substantially
in the form attached hereto as Exhibit N-2.
Each
assessment of compliance provided by a Sub-Servicer pursuant to Section
3.21(iii) shall address each of the Relevant Servicing Criteria applicable
to
Ocwen in Exhibit S. An assessment of compliance provided by a Subcontractor
pursuant to Section 3.21(iii) need not address any elements of the Relevant
Servicing Criteria other than those specified by Ocwen pursuant to Section
3.02.
Ocwen
acknowledges that the Master Servicer may rely on the certification provided
by
Ocwen pursuant clause (iv) above in signing the Certification and filing such
with the Commission. Neither the Master Servicer nor the Depositor will request
delivery of a certification under clause (iv) above unless the Depositor is
required under the Exchange Act to file an annual report on Form 10-K with
respect to an issuing entity whose asset pool includes Ocwen Mortgage
Loans.
Each
of
the Master Servicer, the Trust Administrator and each Custodian shall also
provide, and each such party and the Trustee shall cause any Sub-servicer or
Subcontractor engaged by it to provide an Assessment of Compliance and
Attestation Report, as and when provided above, which shall at a minimum address
each of the Servicing Criteria specified on Exhibit O hereto which are indicated
as applicable to each such party. Notwithstanding the foregoing, as to any
trustee, an Assessment of Compliance is not required to be delivered unless
it
is required as part of Form 10-K with respect to the Trust Fund.
Each
of
Ocwen, the Master Servicer, the Trustee (in its capacity as a Custodian) and
the
Trust Administrator shall indemnify and hold harmless the Depositor, the Master
Servicer, Ocwen and the Trust Administrator and their officers, directors and
Affiliates from and against any actual losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses that such Person may sustain based upon a breach
of
the obligations of such Indemnifying Party under this Section 3.21.
|
(B)
|
Remedies
Regarding Statements as to Compliance, Assessments of Compliance
and
Attestation Reports.
|
Any
failure by Ocwen, any Sub-Servicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Section 3.20 or Section 3.21, including (except as provided below) any
failure by Ocwen to identify any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, shall constitute a
Servicer Event of Termination, and the Trustee may (at the direction of the
Depositor) terminate the rights and obligations of Ocwen under this Agreement
without payment (notwithstanding anything in this Agreement to the contrary)
of
any compensation to Ocwen (other than Ocwen’s rights to reimbursement of
unreimbursed Advances and Servicing Advances and accrued and unpaid Servicing
Fees in the manner provided in this Agreement); provided that to the extent
that
any provision of this Agreement expressly provides for the survival of certain
rights or obligations following termination of Ocwen as servicer, such provision
shall be given effect.
Neither
the Trustee nor the Depositor shall be entitled to terminate the rights and
obligations of Ocwen pursuant to this subparagraph (B)(i) if a failure of Ocwen
to identify a Subcontractor “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB was attributable solely to the role or
functions of such Subcontractor with respect to mortgage loans other than the
Mortgage Loans.
| SECTION 3.22 |
Access
to Certain Documentation.
|
Ocwen
shall provide to the Trustee, the Trust Administrator and the Depositor, at
the
request of the Office of the Controller of the Currency, the Office of Thrift
Supervision, the FDIC and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to the documentation regarding the Ocwen Mortgage Loans required by
applicable laws and regulations. Such access shall be afforded without charge,
but only upon reasonable request and during normal business hours at the offices
of Ocwen designated by it. In addition, upon receipt of 5 days written notice,
access to the documentation regarding the Ocwen Mortgage Loans required by
applicable laws and regulations will be provided to such Certificateholder,
the
Trustee, the Trust Administrator, the Master Servicer and to any Person
identified to Ocwen as a prospective transferee of a Certificate subject to
the
execution of a confidentiality agreement in form and substance satisfactory
to
Ocwen, upon reasonable request during normal business hours at the offices
of
Ocwen designated by it at the expense of the Person requesting such access.
Nothing in this Section 3.22 shall derogate from the obligation of any such
party to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of any such party to provide access
as
provided in this Section as a result of such obligation shall not constitute
a
breach of this Section 3.22. Nothing in this Section 3.22 shall require Ocwen
to
collect, create, collate or otherwise generate any information that it does
not
generate in its usual course of business. Ocwen shall not be required to make
copies of or ship documents to any party unless provisions have been made for
the reimbursement of the costs thereof which shall in no event be reimbursable
by the Trustee.
Ocwen
agrees to fully furnish, in accordance with the Fair Credit Reporting Act and
its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Servicer, on a monthly basis.
| SECTION 3.23 |
Title,
Management and Disposition of REO
Property.
|
(a) The
deed
or certificate of sale of any REO Property serviced by Ocwen shall, subject
to
applicable laws, be taken in the name of the Trustee, or its nominee, in trust
for the benefit of the Certificateholders. Ocwen, on behalf of REMIC 1, shall
sell any such REO Property as soon as practicable and in any event no later
than
the end of the third full taxable year after the taxable year in which such
REMIC acquires ownership of such REO Property for purposes of Section 860G(a)(8)
of the Code or request from the Internal Revenue Service, no later than 60
days
before the day on which the three-year grace period would otherwise expire,
an
extension of such three-year period, unless Ocwen shall have delivered to the
Trustee an Opinion of Counsel, addressed to the Trustee and the Depositor,
to
the effect that the holding by the REMIC of such REO Property subsequent to
three years after its acquisition will not result in the imposition on the
REMIC
of taxes on “prohibited transactions” thereof, as defined in Section 860F of the
Code, or cause any of the REMICs created hereunder to fail to qualify as a
REMIC
under Federal law at any time that any Certificates are outstanding. Ocwen
shall
manage, conserve, protect and operate each REO Property serviced by it for
the
Certificateholders solely for the purpose of its prompt disposition and sale
in
a manner which does not cause such REO Property to fail to qualify as
“foreclosure property” within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by any of the REMICs created hereunder of any “income from
non-permitted assets” within the meaning of Section 860F(a)(2)(B) of the Code,
or any “net income from foreclosure property” which is subject to taxation under
the REMIC Provisions.
(b) Ocwen
shall separately account for all funds collected and received in connection
with
the operation of any REO Property and shall establish and maintain, or cause
to
be established and maintained, with respect to REO Properties serviced by it
an
account held in trust for the Trustee for the benefit of the Certificateholders
(the “REO Account”), which shall be an Eligible Account. Ocwen shall be
permitted to allow the Collection Account to serve as the REO Account, subject
to separate ledgers for each REO Property serviced by it. Ocwen shall be
entitled to retain or withdraw any interest income paid on funds deposited
in
the REO Account.
(c) Ocwen
shall have full power and authority, subject only to the specific requirements
and prohibitions of this Agreement, to do any and all things in connection
with
any REO Property serviced by it as are consistent with the manner in which
Ocwen
manages and operates similar property owned by Ocwen or any of its Affiliates,
all on such terms and for such period (subject to the requirement of prompt
disposition set forth in Section 3.23(a)) as Ocwen deems to be in the best
interests of Certificateholders. In connection therewith, Ocwen shall deposit,
or cause to be deposited in the clearing account in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after Ocwen’s receipt thereof, and shall thereafter deposit in
the REO Account, in no event more than two Business Days after Ocwen’s receipt
thereof, all revenues received by it with respect to an REO Property serviced
by
it and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of such REO Property including, without
limitation:
| (1) |
all
insurance premiums due and payable in respect of such REO
Property;
|
| (2) |
all
real estate taxes and assessments in respect of such REO Property
that may
result in the imposition of a lien thereon;
and
|
| (3) |
all
costs and expenses necessary to maintain, operate and dispose of
such REO
Property.
|
To
the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, Ocwen shall advance from its
own
funds such amount as is necessary for such purposes if, but only if, Ocwen
would
make such advances if Ocwen owned the REO Property and if in Ocwen’s judgment,
the payment of such amounts will be recoverable from the rental or sale of
the
REO Property.
Notwithstanding
the foregoing, neither Ocwen nor the Trustee shall:
(i) authorize
the Trust Fund to enter into, renew or extend any New Lease with respect to
any
REO Property serviced by Ocwen, if the New Lease by its terms will give rise
to
any income that does not constitute Rents from Real Property;
(ii) authorize
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(iii) authorize
any construction on any such REO Property, other than the completion of a
building or other improvement thereon, and then only if more than ten percent
of
the construction of such building or other improvement was completed before
default on the related Mortgage Loan became imminent, all within the meaning
of
Section 856(e)(4)(B) of the Code; or
(iv) authorize
any Person to Directly Operate any such REO Property on any date more than
90
days after its date of acquisition by the Trust Fund;
unless,
in any such case, Ocwen has obtained an Opinion of Counsel, provided to the
Trust Administrator and the Master Servicer, to the effect that such action
will
not cause such REO Property to fail to qualify as “foreclosure property” within
the meaning of Section 860G(a)(8) of the Code at any time that it is held by
the
REMIC, in which case Ocwen may take such actions as are specified in such
Opinion of Counsel.
Ocwen
may
contract with any Independent Contractor for the operation and management of
any
REO Property serviced by it, provided that:
(i) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(ii) any
such
contract shall require, or shall be administered to require, that the
Independent Contractor pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including those listed above
and remit all related revenues (net of such costs and expenses) to Ocwen as
soon
as practicable, but in no event later than thirty days following the receipt
thereof by such Independent Contractor;
(iii) none
of
the provisions of this Section 3.23(c) relating to any such contract or to
actions taken through any such Independent Contractor shall be deemed to relieve
Ocwen of any of its duties and obligations to the Trustee on behalf of the
Certificateholders with respect to the operation and management of any such
REO
Property; and
(iv) Ocwen
shall be obligated with respect thereto to the same extent as if it alone were
performing all duties and obligations in connection with the operation and
management of such REO Property.
Ocwen
shall be entitled to enter into any agreement with any Independent Contractor
performing services for it related to its duties and obligations hereunder
for
indemnification of Ocwen by such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. Ocwen shall
be solely liable for all fees owed by it to any such Independent Contractor,
irrespective of whether Ocwen’s compensation pursuant to Section 3.18 is
sufficient to pay such fees; provided, however, that to the extent that any
payments made by such Independent Contractor would constitute Servicing Advances
if made by Ocwen, such amounts shall be reimbursable as Servicing Advances
made
by Ocwen.
(d) In
addition to the withdrawals permitted under Section 3.23(c), Ocwen may from
time
to time make withdrawals from the REO Account for any REO Property serviced
by
it: (i) to pay itself or any Sub-Servicer unpaid Servicing Fees in respect
of
the related Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer
for
unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. On the Servicer Remittance Date, Ocwen
shall withdraw from each REO Account maintained by it and remit to the Trust
Administrator for deposit into the Distribution Account in accordance with
Section 3.10(d)(ii), for distribution on the related Distribution Date in
accordance with Section 4.01, the income from the related REO Property received
during the prior calendar month, net of any withdrawals made pursuant to Section
3.23(c) or this Section 3.23(d).
(e) Subject
to the time constraints set forth in Section 3.23(a), each REO Disposition
shall
be carried out by Ocwen in a manner, at such price and upon such terms and
conditions as shall be normal and usual in the Servicing Standard.
(f) The
proceeds from the REO Disposition, net of any amount required by law to be
remitted to the Mortgagor under the related Mortgage Loan and net of any payment
or reimbursement to Ocwen or any Sub-Servicer as provided above, shall be
remitted to the Trust Administrator for deposit in the Distribution Account
in
accordance with Section 3.10(d)(ii) on the Servicer Remittance Date in the
month
following the receipt thereof for distribution on the related Distribution
Date
in accordance with Section 4.01. Any REO Disposition shall be for cash only
(unless changes in the REMIC Provisions made subsequent to the Startup Day
allow
a sale for other consideration).
(g) Ocwen
shall file information returns with respect to the receipt of mortgage interest
received in a trade or business, reports of foreclosures and abandonments of
any
Mortgaged Property and cancellation of indebtedness income with respect to
any
Mortgaged Property as required by the Code. Such reports shall be in form and
substance sufficient to meet the reporting requirements of the
Code.
| SECTION 3.24 |
Obligations
of Ocwen in Respect of Prepayment Interest
Shortfalls.
|
Ocwen
shall deliver to the Trust Administrator for deposit into the Distribution
Account on each Servicer Remittance Date from its own funds (or from a
Sub-Servicer’s own funds received by Ocwen in respect of Compensating Interest)
an amount equal to the lesser of (a) the amount, if any, by which the Prepayment
Interest Shortfall for the related Prepayment Period exceeds the Prepayment
Interest Excess for the related Prepayment Period, and (b) the amount of the
Servicing Fee payable to Ocwen for such Distribution Date. Ocwen shall not
be
obligated to pay Compensating Interest with respect to Relief Act Interest
Shortfalls.
| SECTION 3.25 |
Obligations
of Ocwen in Respect of Monthly Payments.
|
In
the
event that a shortfall in any collection on or liability with respect to the
Ocwen
Mortgage
Loans in the aggregate results from or is attributable to adjustments to
Mortgage Rates, Monthly Payments or Stated Principal Balances that were made
by
Ocwen in a manner not consistent with the terms of the related Mortgage Note
and
this Agreement, Ocwen, upon discovery or receipt of notice thereof, immediately
shall deposit in the Collection Account from its own funds the amount of any
such shortfall and shall indemnify and hold harmless the Trust Fund, the
Trustee, the Trust Administrator, the Depositor and any successor servicer
in
respect of any such liability. Such indemnities shall survive the termination
or
discharge of this Agreement. If amounts paid by Ocwen with respect to any Ocwen
Mortgage Loan pursuant to this Section 3.25 are subsequently recovered from
the
related Mortgagor, Ocwen shall be permitted to reimburse itself for such amounts
paid by it pursuant to this Section 3.25 from such recoveries. Notwithstanding
the foregoing, this Section 3.25 shall not limit the ability of Ocwen to seek
recovery of any such amounts from the related Mortgagor under the terms of
the
related Mortgage Note, as permitted by law.
| SECTION 3.26 |
[Reserved].
|
| SECTION 3.27 |
[Reserved].
|
| SECTION 3.28 |
Late
Remittance.
|
With
respect to any remittance received by the Master
Servicer after
the
day on which such payment was due, Ocwen shall pay to the Master Servicer
interest on any such late payment at an annual rate equal to the Prime Rate,
adjusted as of the date of each change, plus three percentage points, but in
no
event greater than the maximum amount permitted by applicable law. Such interest
shall be deposited in the Distribution Account by Ocwen on the date such late
payment is made and shall cover the period commencing with the day such payment
was due and ending with the Business Day on which such payment is made, both
inclusive. Such interest shall be remitted along with the distribution payable
on the next succeeding Servicer Remittance Date. The payment by Ocwen of any
such interest shall not be deemed an extension of time for payment or a waiver
of any Servicer Event of Termination.
| SECTION 3.29 |
Advance
Facility.
|
Ocwen
is
hereby authorized to enter into a financing or other facility (any such
arrangement, an “Advance Facility”) under which (1) Ocwen sells, assigns or
pledges to another Person (together with such Person’s successors and assigns,
an “Advancing Person”) Ocwen’s rights under this Agreement to be reimbursed for
any Advances or Servicing Advances and/or (2) an Advancing Person agrees to
fund
some or all Advances and/or Servicing Advances required to be made by Ocwen
pursuant to this Agreement. Ocwen is hereby authorized to assign its rights
to
the Servicing Fee and to pledge any applicable servicing rights; it being
understood that neither the Trust Fund nor any party hereto shall have a right
or claim (including without limitation any right of offset) to the portion
of
the Servicing Fee so assigned. No consent of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator, the Certificateholders or any other party
shall be required before Ocwen may enter into an Advance Facility. Ocwen shall
notify each other party to this Agreement prior to or promptly after entering
into or terminating any Advance Facility. Notwithstanding the existence of
any
Advance Facility under which an Advancing Person agrees to fund Advances and/or
Servicing Advances on Ocwen’s behalf, Ocwen shall remain obligated pursuant to
this Agreement to make Advances and Servicing Advances pursuant to and as
required by this Agreement. If Ocwen enters into an Advance Facility, and for
so
long as an Advancing Person remains entitled to receive reimbursement for any
Advances including Nonrecoverable Advances (“Advance Reimbursement Amounts”)
and/or Servicing Advances including Nonrecoverable Advances (“Servicing Advance
Reimbursement Amounts” and together with Advance Reimbursement Amounts,
“Reimbursement Amounts”) (in each case to the extent such type of Reimbursement
Amount is included in the Advance Facility), as applicable, pursuant to this
Agreement, then, Ocwen shall identify such Reimbursement Amounts consistent
with
the reimbursement rights set forth in Section 3.11(ii), (iii), (vi) and (vii)
and remit such Reimbursement Amounts in accordance with Section 3.10(b) or
otherwise in accordance with the documentation establishing the Advance Facility
to such Advancing Person or to a trustee, agent or custodian (an “Advance
Facility Trustee”) designated by such Advancing Person. Notwithstanding anything
to the contrary herein, in no event shall Advance Reimbursement Amounts or
Servicing Advance Reimbursement Amounts be included in the Available Funds
or
distributed to Certificateholders.
Reimbursement
Amounts shall consist solely of amounts in respect of Advances and/or Servicing
Advances made with respect to the Ocwen Mortgage Loans for which Ocwen would
be
permitted to reimburse itself in accordance with this Agreement, assuming Ocwen
or the Advancing Person had made the related Advance(s) and/or Servicing
Advance(s). Notwithstanding the foregoing, except with respect to reimbursement
of Nonrecoverable Advances as set forth in this Agreement, no Person shall
be
entitled to reimbursement from funds held in the Collection Account for future
distribution to Certificateholders pursuant to this Agreement. None of the
Depositor, the Master Servicer, the Trustee or the Trust Administrator shall
have any duty or liability with respect to the calculation or payment of any
Reimbursement Amount, nor shall the Depositor, the Master Servicer, the Trustee
or the Trust Administrator shall have any responsibility to track or monitor
the
administration of the Advance Facility or the payment of Reimbursement Amounts
to the related Advancing Person or Advance Facility Trustee. Ocwen shall
maintain and provide to any successor servicer and (upon request) the Trust
Administrator a detailed accounting on a loan by loan basis as to amounts
advanced by, sold, pledged or assigned to, and reimbursed to any Advancing
Person. The successor servicer and the Trust Administrator shall be entitled
to
rely on any such information provided by the predecessor servicer, and the
successor servicer and the Trust Administrator shall not be liable for any
errors in such information.
An
Advancing Person who receives an assignment or pledge of the rights to be
reimbursed for Advances and/or Servicing Advances, and/or whose obligations
hereunder are limited to the funding or purchase of Advances and/or Servicing
Advances shall not be required to meet the criteria for qualification of a
subservicer set forth in this Agreement.
Reimbursement
Amounts distributed with respect to each Ocwen Mortgage Loan shall be allocated
to outstanding unreimbursed Advances or Servicing Advances (as the case may
be)
made with respect to that Ocwen Mortgage Loan on a “first in, first out” (FIFO)
basis. Such documentation shall also require Ocwen to provide to the related
Advancing Person or Advance Facility Trustee loan by loan information with
respect to each Reimbursement Amount distributed to such Advancing Person or
Advance Facility Trustee, to enable the Advancing Person or Advance Facility
Trustee to make the FIFO allocation of each Reimbursement Amount with respect
to
each Ocwen Mortgage Loan. Ocwen shall remain entitled to be reimbursed for
all
Advances and Servicing Advances funded by Ocwen to the extent the related rights
to be reimbursed therefor have not been sold, assigned or pledged to an
Advancing Person.
Ocwen
shall indemnify the Depositor, the Trustee, the Trust Administrator, the Master
Servicer, any successor servicer and the Trust Fund for any loss, liability
or
damage resulting from any claim by the related Advancing Person, except to
the
extent that such claim, loss, liability or damage resulted from or arose out
of
negligence, recklessness or willful misconduct or breach of its duties hereunder
on the part of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator or any successor servicer.
Any
amendment to this Section 3.29 or to any other provision of this Agreement
that
may be necessary or appropriate to effect the terms of an Advance Facility
as
described generally in this Section 3.29, including amendments to add provisions
relating to a successor servicer, may be entered into by the Trustee, the Trust
Administrator, the Depositor, the Master Servicer and Ocwen without the consent
of any Certificateholder, provided such amendment complies with Section 11.01
hereof. All reasonable costs and expenses (including attorneys’ fees and
expenses) of each party hereto of any such amendment shall be borne solely
by
Ocwen. Prior to entering into an Advance Facility, Ocwen shall notify the
Advancing Person in writing that: (a) the Advances and/or Servicing Advances
purchased, financed by and/or pledged to the Advancing Person are obligations
owed to Ocwen on a non-recourse basis payable only from the cash flows and
proceeds received under this Agreement for reimbursement of Advances and/or
Servicing Advances only to the extent provided herein, and the Trustee, the
Trust Administrator, the Master Servicer and the Trust are not otherwise
obligated or liable to repay any Advances and/or Servicing Advances financed
by
the Advancing Person; (b) Ocwen will be responsible for remitting to the
Advancing Person the applicable amounts collected by it as reimbursement for
Advances and/or Servicing Advances funded by the Advancing Person, subject
to
the restrictions and priorities created in this Agreement; and (c) neither
the
Trustee nor the Trust Administrator shall have any responsibility to track
or
monitor the administration of the Advance Facility between Ocwen and the
Advancing Person.
This
Section 3.29 may not be amended or otherwise modified without the prior written
consent of the related Advancing Person.
| SECTION 3.30 |
Solicitations.
|
From
and
after the Closing Date, Ocwen agrees that it will not take
any
action or permit or cause any action to be taken by any of its agents and
Affiliates, or by any
independent
contractors or independent mortgage brokerage companies on Ocwen’s
behalf,
to personally, by telephone, mail or electronic mail, solicit the Mortgagor
under any
Ocwen
Mortgage Loan for the purpose of refinancing such Ocwen Mortgage Loan; provided,
that the Servicer may solicit any Mortgagor for whom Ocwen has received a
request for
verification
of mortgage, a request for demand for payoff, a mortgagor initiated written
or
verbal
communication
indicating a desire to prepay the related Ocwen Mortgage Loan, another mortgage
company has pulled a credit report on the mortgagor or the mortgagor initiates
a
title search; provided further, it is understood and agreed that promotions
undertaken by the
or
any of
its Affiliates which (i) concern optional insurance products or other additional
products
or
(ii)
are directed to the general public at large, including, without limitation,
mass
mailings
based
on
commercially acquired mailing lists, newspaper, radio and television
advertisements
shall
not
constitute solicitation under this Section, nor is Ocwen prohibited from
responding
to unsolicited requests or inquiries made by a Mortgagor or an agent of a
Mortgagor.
Furthermore,
Ocwen shall be permitted to include in its monthly statements to
borrowers
or otherwise, statements regarding the availability of Ocwen’s counseling
services
with respect to refinancing mortgage loans.
ARTICLE
IIIA
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
| SECTION 3A.01 |
Master
Servicer to Act as Master Servicer.
|
The
Master Servicer shall supervise, monitor and oversee the obligation of each
Servicer to service and administer the Mortgage Loans serviced by it in
accordance with the terms of this Agreement or the related Servicing Agreement
and shall have full power and authority to do any and all things which it may
deem necessary or desirable in connection with such master servicing and
administration. In performing its obligations hereunder, the Master Servicer
shall act in a manner consistent with Accepted Master Servicing Practices.
Furthermore, the Master Servicer shall oversee and consult with the Servicer
as
necessary from time-to-time to carry out the Master Servicer’s obligations
hereunder, shall receive, review and evaluate all reports, information and
other
data provided to the Master Servicer by the related Servicer and shall cause
each Servicer to perform and observe the covenants, obligations and conditions
to be performed or observed by such Servicer under this Agreement or the related
Servicing Agreement. The Master Servicer shall independently monitor each
Servicer’s servicing activities with respect to each Mortgage Loan, reconcile
the results of such monitoring with such information provided in the previous
sentence on a monthly basis and coordinate corrective adjustments to such
Servicer’s and the Master Servicer’s records, and based on such reconciled and
corrected information, the Master Servicer shall provide such information to
the
Trust Administrator as shall be necessary in order for it to prepare the
statements specified in Section 4.02, and prepare any other information and
statements required to be forwarded by the Master Servicer hereunder. The Master
Servicer shall reconcile the results of its Mortgage Loan monitoring with the
actual remittances of the Servicer to the Distribution Account pursuant to
Section 3A.11.
The
Trustee shall furnish each Servicer and the Master Servicer with any powers
of
attorney and other documents in form as provided to it necessary or appropriate
to enable such Servicer and the Master Servicer to service and administer the
Mortgage Loans and REO Properties.
The
Trustee and the Trust Administrator shall provide access to the records and
documentation in possession of the Trustee or the Trust Administrator, as
applicable, regarding the Mortgage Loans and REO Properties and the servicing
thereof to the Certificateholders, the FDIC, and the supervisory agents and
examiners of the FDIC, such access being afforded only upon reasonable prior
written request and during normal business hours at the office of the Trustee
or
the Trust Administrator, as applicable; provided, however, that, unless
otherwise required by law, neither the Trustee nor the Trust Administrator
shall
be required to provide access to such records and documentation if the provision
thereof would violate the legal right to privacy of any Mortgagor. The Trustee
and the Trust Administrator shall allow representatives of the above entities
to
photocopy any of the records and documentation and shall provide equipment
for
that purpose at a charge that covers the Trustee’s or Trust Administrator’s, as
applicable, actual costs. In addition, the Trustee shall, upon request of the
Depositor, give the Depositor access to the Mortgage Files in its possession,
such access being afforded only upon reasonable prior written request and during
normal business hours at the office of the Trustee.
The
Trustee shall execute and deliver to the related Servicer and the Master
Servicer any court pleadings, requests for trustee’s sale or other documents
necessary or desirable to (i) the foreclosure or trustee’s sale with respect to
a Mortgaged Property; (ii) any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Security Instrument; (iii) obtain a
deficiency judgment against the Mortgagor; or (iv) enforce any other rights
or
remedies provided by the Mortgage Note or Mortgage or otherwise available at
law
or equity.
| SECTION 3A.02 |
[Reserved].
|
| SECTION 3A.03 |
Monitoring
of Servicers.
|
In
the
review of each Servicer’s activities, the Master Servicer may rely upon an
Officers’ Certificate of the related Servicer (or similar document signed by a
Servicing Officer of the related Servicer) with regard to such Servicer’s
compliance with the terms of this Agreement or the related Servicing Agreement.
In the event that the Master Servicer, in its judgment, determines that a
Servicer should be terminated in accordance with the terms hereof or thereof,
or
that a notice should be sent pursuant to the terms hereof or thereof with
respect to the occurrence of an event that, unless cured, would constitute
grounds for such termination, the Master Servicer shall notify the Depositor,
the Trust Administrator and the Trustee thereof and the Master Servicer shall
issue such notice or take such other action as it deems
appropriate.
The
Master Servicer or (if the Master Servicer is the Servicer) the Trustee, for
the
benefit of the Certificateholders, shall enforce the obligations of each
Servicer under this Agreement or the related Servicing Agreement, and shall,
in
the event that it receives notice that a Servicer has failed to perform its
obligations in accordance with this Agreement or
the
related Servicing Agreement,
subject
to the preceding paragraph, terminate the rights and obligations of such
Servicer hereunder or thereunder in accordance with the provisions of Article
VII or the related Servicing Agreement and act as Servicer of such Mortgage
Loans or appoint a successor servicer; provided, however, it is understood
and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor servicer. Such enforcement, including, without
limitation, the legal prosecution of claims 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 or Trustee (or such other successor master
servicer), as applicable, in its good faith business judgment, would require
were it the owner of such Mortgage Loans. The Master Servicer or the Trustee
(or
such other successor master servicer), as applicable, shall pay the costs of
such enforcement at its own expense, provided that the Master Servicer or the
Trustee (or such other successor master servicer), as applicable, shall not
be
required to prosecute or defend any legal action except to the extent that
the
Master Servicer or the Trustee (or such other successor master servicer), as
applicable, shall have received reasonable indemnity for its costs and expenses
in pursuing such action.
To
the
extent that the costs and expenses of the Master Servicer or Trustee, as
applicable, related to any termination of a Servicer, appointment of a successor
servicer or the transfer and assumption of servicing by the Master Servicer
or
the Trustee, as applicable, with respect to this Agreement (including, without
limitation, (i) all legal costs and expenses and all due diligence costs and
expenses associated with an evaluation of the potential termination of the
Servicer as a result of a Servicer Event of Termination and (ii) all costs
and
expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise
to
enable the successor servicer to service the Mortgage Loans in accordance with
this Agreement or the related Servicing Agreement) are not fully and timely
reimbursed by the terminated Servicer, the Master Servicer or the Trustee,
as
applicable, shall be entitled to reimbursement of such costs and expenses from
the Distribution Account.
The
Master Servicer (or if the Master Servicer is the Servicer, the Trustee (or
other successor master servicer)) shall, upon receipt from the related Servicer,
the Master Servicer or the Trust Administrator, of notice of any failure of
a
Servicer to comply with the remittance requirements and other obligations set
forth in this Agreement or the related Servicing Agreement, enforce such
obligations after consultation with the Depositor.
If
the
Master Servicer or the Trustee, as applicable, acts as a Servicer, it will
not
assume liability for the representations and warranties of such Servicer that
it
replaces.
| SECTION 3A.04 |
Fidelity
Bond.
|
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as Master Servicer.
| SECTION 3A.05 |
Power
to Act; Procedures.
|
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement or the related
Servicing Agreement; provided, however, that the Master Servicer shall not
(and,
consistent with its responsibilities under Article X, shall not permit any
Servicer to) knowingly or intentionally take any action, or fail to take (or
fail to cause to be taken) any action reasonably within its control and the
scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, would cause the Trust
REMIC to fail to qualify as a REMIC or result in the imposition of a tax upon
the Trust Fund (including but not limited to the tax on prohibited transactions
as defined in Section 860F(a)(2) of the Code and the tax on contributions to
a
REMIC set forth in Section 860G(d) of the Code) unless the Master Servicer
has
received an Opinion of Counsel (but not at the expense of the Master Servicer)
to the effect that the contemplated action would not cause any REMIC to fail
to
qualify as a REMIC or result in the imposition of a tax upon any REMIC. The
Trustee shall furnish the Master Servicer or the related Servicer, upon written
request from a Servicing Officer, with any powers of attorney empowering the
Master Servicer or such Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
to
foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Mortgage Loans or the
Mortgaged Property, in accordance with this Agreement or the related Servicing
Agreement, and the Trustee shall execute and deliver such other documents,
as
the Master Servicer may request, to enable the Master Servicer to master service
and administer the Mortgage Loans and carry out its duties hereunder, in each
case in accordance with Accepted Master Servicing Practices (and the Trustee
shall have no liability for misuse of any such powers of attorney by the Master
Servicer or the related Servicer). If the Master Servicer or the Trustee has
been advised that it is likely that the laws of the state in which action is
to
be taken prohibit such action if taken in the name of the Trustee or that the
Trustee would be adversely affected under the “doing business” or tax laws of
such state if such action is taken in its name, the Master Servicer shall join
with the Trustee in the appointment of a co-trustee pursuant to Section 8.10
hereof. In the performance of its duties hereunder, the Master Servicer shall
be
an independent contractor and shall not, except in those instances where it
is
taking action in the name of the Trustee, be deemed to be the agent of the
Trustee.
| SECTION 3A.06 |
Due
on Sale Clauses; Assumption
Agreements.
|
To
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the related Servicer to enforce such clauses in accordance
with this Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
this Agreement, and, as a consequence, a Mortgage Loan is assumed, the original
Mortgagor may be released from liability in accordance with this Agreement
or
the related Servicing Agreement.
| SECTION 3A.07 |
[Reserved].
|
| SECTION 3A.08 |
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
The
Master Servicer and the related Servicer shall transmit to the Trustee (or
the
related Custodian on behalf of the Trustee) such documents and instruments
coming into the possession of the Master Servicer or such Servicer from time
to
time as are required by the terms hereof to be delivered to the Trustee, the
Trust Administrator or the related Custodian. Any funds received by the Master
Servicer or by the related Servicer in respect of any Mortgage Loan or which
otherwise are collected by the Master Servicer or by the related 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 Distribution Account the
Master Servicing Compensation and other amounts provided in this Agreement,
and
to the right of the related Servicer to retain its Servicing Fee and other
amounts as provided in this Agreement. The Master Servicer shall, and subject
to
Section 3.22 or subject to the related Servicing Agreement shall cause the
related Servicer to, provide access to information and documentation regarding
the Mortgage Loans to the Trust Administrator, its agents and accountants at
any
time upon reasonable request and during normal business hours, and to
Certificateholders that are savings and loan associations, banks or insurance
companies, the Office of Thrift Supervision, the FDIC and the supervisory agents
and examiners of such Office and Corporation or examiners of any other federal
or state banking or insurance regulatory authority if so required by applicable
regulations of the Office of Thrift Supervision or other regulatory authority,
such access to be afforded without charge but only upon reasonable request
in
writing and during normal business hours at the offices of the Master Servicer
designated by it. In fulfilling such a request the Master Servicer shall not
be
responsible for determining the sufficiency of such information.
All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer or the related 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 related
Servicer or the Master Servicer, as applicable, 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
related 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 related Servicer under this Agreement or the related Servicing
Agreement.
| SECTION 3A.09 |
Compensation
for the Master Servicer.
|
The
Master Servicer will be entitled to a portion of the Administration Fee and
all
income and gain realized from any investment of funds in the Distribution
Account, pursuant to Section 3A.11 and Section 3A.12, for the performance of
its
activities hereunder (the “Master Servicing Compensation”). Servicing
compensation in the form of assumption fees, if any, late payment charges,
as
collected, if any, or otherwise shall be retained by the Servicer in accordance
with Section 3.18. The Master Servicer shall be required to pay all expenses
incurred by it in connection with the performance of its duties hereunder and
shall not be entitled to reimbursement therefor except as provided in this
Agreement.
| SECTION 3A.10 |
Obligations
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
In
the
event of a Prepayment Interest Shortfall, the Master Servicer shall remit to
the
Trust Administrator, from its own funds and without right of reimbursement
(except as described below), not later than the related Distribution Date,
Compensating Interest in an amount equal to the lesser of (i) the aggregate
amounts in respect of Compensating Interest required to be paid by the Servicer
pursuant to Section 3.24 with respect to Prepayment Interest Shortfalls
attributable to Principal Prepayments in full on the Mortgage Loans for the
related Distribution Date and not so paid by the related
Servicer
and (ii) the aggregate compensation payable to the Master Servicer for the
related collection period under this Agreement. In the event the Master Servicer
pays any amount in respect of such Compensating Interest prior to the time
it
shall have succeeded as successor servicer, the Master Servicer shall be
subrogated to the Trust Fund’s right to receive such amount from the related
Servicer. In the event the Trust Fund receives from the related Servicer all
or
any portion of amounts in respect of Compensating Interest required to be paid
by the related Servicer pursuant to Section 3.24 or pursuant to the related
Servicing Agreement, not so paid by the related Servicer when required, and
paid
by the Master Servicer pursuant to this Section 3A.10, then the Master Servicer
may reimburse itself for the amount of Compensating Interest paid by the Master
Servicer from such receipts by the Trust Fund.
| SECTION 3A.11 |
Distribution
Account.
|
On
behalf
of the Trust Fund, the Trust Administrator shall establish and maintain one
or
more accounts (such account or accounts, the “Distribution Account”), held in
Trust for the benefit of the Trustee and the Certificateholders. The
Distribution Account shall be an Eligible Account. The Master Servicer will
deposit in the Distribution Account as identified by the Master Servicer and
as
received by the Master Servicer, the following amounts:
(i) Any
amounts remitted to the Master Servicer by the related Servicer from the
Collection Account or the related Custodial Account;
(ii) Any
Advances received from a Servicer, or made by the Master Servicer or (if the
Master Servicer is the Servicer) the Trustee (in each case in its capacity
as
successor servicer), and any payments of Compensating Interest received from
the
related Servicer or made by the Master Servicer (unless, in the case of the
Master Servicer, such amounts are deposited by the Master Servicer directly
into
the Distribution Account);
(iii) Any
Insurance Proceeds or Net Liquidation Proceeds received by or on behalf of
the
Master Servicer or which were not deposited in the Collection
Account;
(iv) Any
amounts required to be deposited with respect to losses on investments of
deposits in the Distribution Account; and
(v) Any
other
amounts received by or on behalf of the Master Servicer and required to be
deposited in the Distribution Account pursuant to this Agreement.
All
amounts deposited to the Distribution Account shall be held by the Master
Servicer in the name of the Trustee in Trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Distribution Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of (A) late payment charges or
assumption, tax service, statement account or payoff, substitution,
satisfaction, release and other like fees and charges and (B) the items
enumerated in Section 3A.12(a) (with respect the clearing and termination of
the
Distribution Account and with respect to amounts deposited in error), in Section
3A.12(b) or in clauses (i), (ii), (iii) and (iv), (v) of Section 3A.12(c),
need
not be credited by the Master Servicer to the Distribution Account. In the
event
that the Master Servicer shall deposit or cause to be deposited to the
Distribution Account any amount not required to be credited thereto, the Trustee
or the Trust Administrator, upon receipt of a written request therefor signed
by
a Servicing Officer of the Master Servicer, shall promptly transfer such amount
to the Master Servicer, any provision herein to the contrary
notwithstanding.
The
Trust
Administrator may direct any depository institution maintaining the Distribution
Account to invest the funds on deposit in such account or to hold such funds
uninvested. All investments pursuant to this Section 3A.11 shall be in one
or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (i) no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if a Person other than the Trust
Administrator is the obligor thereon or if such investment is managed or advised
by a Person other than the Trust Administrator or an Affiliate of the Trust
Administrator, and (ii) no later than the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if the Trust
Administrator is the obligor thereon or if such investment is managed or advised
by the Trust Administrator or any Affiliate. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds
in
the Distribution Account shall be made in the name of the Trustee, or in the
name of a nominee of the Trust Administrator. The Trust Administrator shall
be
entitled to sole possession over each such investment, and any certificate
or
other instrument evidencing any such investment shall be delivered directly
to
the Trust Administrator or its agent, together with any document of transfer
necessary to transfer title to such investment to the Trust Administrator or
its
nominee. In the event amounts on deposit in the Distribution Account are at
any
time invested in a Permitted Investment payable on demand, the Trust
Administrator shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by a
Responsible Officer of the Trust Administrator that such Permitted Investment
would not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Distribution Account.
All
income and gain realized from the investment of funds deposited in the
Distribution Account shall be for the benefit of the Master Servicer. The Trust
Administrator shall deposit in the Distribution Account the amount of any loss
of principal incurred in respect of any such Permitted Investment made with
funds in such Account immediately upon realization of such loss.
| SECTION 3A.12 |
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
(a)
The
Trust Administrator will, from time to time on demand of the Master Servicer,
a
Servicer or the Trustee, make or cause to be made such withdrawals or transfers
from the Distribution Account pursuant to this Agreement. The Trust
Administrator may clear and terminate the Distribution Account pursuant to
Section 9.01 and remove amounts from time to time deposited in
error.
(b)
On an
ongoing basis, the Trust Administrator shall withdraw funds from the
Distribution Account to pay (i) any Extraordinary Trust Fund Expenses including
but not limited to amounts payable to the Servicer or the Depositor pursuant
to
Section 6.03(b) or Master Servicer pursuant to Section 6.03(c), and (ii) any
amounts expressly payable to the Master Servicer as set forth in Section
3A.09.
(c)
The
Trust Administrator may withdraw from the Distribution Account any of the
following amounts (in the case of any such amount payable or reimbursable to
the
related Servicer, only to the extent such Servicer shall not have paid or
reimbursed itself such amount prior to making any remittance to the Master
Servicer pursuant to the terms of this Agreement or the related Servicing
Agreement):
(v) to
reimburse the Master Servicer or (if the Master Servicer is the Servicer) the
Trustee (to the extent either of them is obligated to do so as successor
Servicer) for any Advance of its own funds, the right of the Master Servicer
or
the Trustee, as applicable, to reimbursement pursuant to this subclause (i)
being limited to amounts received on a particular Mortgage Loan (including,
for
this purpose, the Purchase Price therefor, Insurance Proceeds, Liquidation
Proceeds and Subsequent Recoveries) which represent late payments or recoveries
of the principal of or interest on such Mortgage Loan respecting which such
Advance was made;
(vi) to
reimburse the Master Servicer from Insurance Proceeds, Liquidation Proceeds
or
Subsequent Recoveries relating to a particular Mortgage Loan for amounts
expended by the Master Servicer in good faith in connection with the restoration
of the related Mortgaged Property which was damaged by an Uninsured Cause or
in
connection with the liquidation of such Mortgage Loan;
(vii) to
reimburse the Master Servicer from Insurance Proceeds relating to a particular
Mortgage Loan for insured expenses incurred with respect to such Mortgage Loan
and to reimburse the Master Servicer from Liquidation Proceeds and Subsequent
Recoveries from a particular Mortgage Loan for Liquidation Expenses incurred
with respect to such Mortgage Loan;
(viii) to
reimburse the Master Servicer for advances of funds (other than Advances) made
with respect to the Mortgage Loans, and the right to reimbursement pursuant
to
this subclause being limited to amounts received on the related Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance Proceeds,
Liquidation Proceeds and Subsequent Recoveries) which represent late recoveries
of the payments for which such advances were made;
(ix) to
reimburse the Master Servicer or (if the Master Servicer is the Servicer) the
Trustee (to the extent either of them is obligated to do so as successor
Servicer) for any Advance or Servicing Advance, after a Realized Loss has been
allocated with respect to the related Mortgage Loan if the Advance or Servicing
Advance has not been reimbursed pursuant to clauses (i) through
(iv);
(x) to
pay
the Credit Risk Manager the Credit Risk Manager Fee;
(xi) to
make
distributions in accordance with Section 4.01;
(xii) to
pay
compensation to the Trust Administrator on each Distribution Date;
(xiii) to
pay
any amounts in respect of taxes pursuant to Section 10.01(g);
(xiv) without
duplication of the amount set forth in clause (iii) above, to pay any
Extraordinary Trust Fund Expenses to the extent not paid by the Master Servicer
from the Distribution Account;
(xv) without
duplication of any of the foregoing, to reimburse or pay the related Servicer
any such amounts as are due thereto under this Agreement and have not been
retained by or paid to the related Servicer, to the extent provided in this
Agreement or the related Servicing Agreement and to refund to the related
Servicer any amount remitted by such Servicer to the Master Servicer in
error;
(xvi) to
pay to
the Master Servicer, any interest or investment income earned on funds deposited
in the Distribution Account;
(xvii) to
withdraw any amount deposited in the Distribution Account in error;
and
(xviii) to
clear
and terminate the Distribution Account pursuant to Section 9.01.
The
Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of accounting for any reimbursement
from
the Distribution Account pursuant to clauses (i) through (v) above or with
respect to any such amounts which would have been covered by such clauses had
the amounts not been retained by the Master Servicer without being deposited
in
the Distribution Account.
On
each
Distribution Date, the Master Servicer or (if the Master Servicer is the
Servicer) the Trustee (to the extent either of them is obligated to do so as
a
successor Servicer) shall remit to the Trust Administrator for deposit in the
Distribution Account any Advances required to be made, but not made by Ocwen
or
any other Servicer and the Master Servicer shall deposit in the Distribution
Account any Compensating Interest required to be paid by Ocwen or any other
Servicer, in either such case by the Master Servicer or the Trustee, as
applicable, with respect to the Mortgage Loans.
ARTICLE
IV
FLOW
OF
FUNDS
| SECTION 4.01 |
Distributions.
|
(a) (I)
On
each Distribution Date, the Trust Administrator shall, first, withdraw from
the
Distribution Account an amount equal to the Credit Risk Manager Fee for such
Distribution Date and shall pay such amount to the Credit Risk Manager and,
then, withdraw that portion of Available Funds for such Distribution Date
consisting of the Group I Interest Remittance Amount for such Distribution
Date,
and make the following disbursements and transfers in the order of priority
described below, in each case to the extent of the Group I Interest Remittance
Amount remaining for such Distribution Date:
(i) to
the
Holders of the Group I Certificates, the Monthly Interest Distributable Amount
and the Unpaid Interest Shortfall Amount, if any, for such Class;
and
(ii) concurrently,
to the Holders of the Group II Certificates, on a pro
rata basis
based on the entitlement of each such Class, an amount equal to the excess,
if
any, of (x) the amount required to be distributed pursuant to Section
4.01(a)(II)(i) below for such Distribution Date over (y) the amount actually
distributed pursuant to such clause from the Group II Interest Remittance
Amount.
(II) On
each
Distribution Date the Trust Adminsitrator shall withdraw from the Distribution
Account that portion of Available Funds for such Distribution Date consisting
of
the Group II Interest Remittance Amount for such Distribution Date, and make
the
following disbursements and transfers in the order of priority described below,
in each case to the extent of the Group II Interest Remittance Amount remaining
for such Distribution Date.
(i) concurrently,
to the Holders of the Group II Certificates, on a pro
rata
basis
based on the entitlement of each such Class, the Monthly Interest Distributable
Amount and the Unpaid Interest Shortfall Amount, if any, for each such Class;
and
(ii) to
the
Holders of the Group I Certificates, an amount equal to the excess, if any,
of
(x) the amount required to be distributed pursuant to Section 4.01(a)(I)(i)
above for such Distribution Date over (y) the amount actually distributed
pursuant to such clause from the Group I Interest Remittance
Amount.
(III) On
each
Distribution Date, distributions to the extent of the sum of the Group I
Interest Remittance Amount and the Group II Interest Remittance Amount remaining
undistributed for such Distribution Date shall be distributed sequentially,
to
the Holders of the Class M-1 Certificates, the Class M-2 Certificates, the
Class
M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates, the
Class M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates
(concurrently, to the holders of the Class M-8A Certificates and the Class
M-8B
Certificates, on a pro
rata
basis
based on the entitlement of each such class), the Class M-9 Certificates and
the
Class M-10 Certificates, in that order, in an amount equal to the Monthly
Interest Distributable Amount for each such Class.
(b) (I)On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which
a
Trigger Event is in effect, distributions in respect of principal to the extent
of the Group I Principal Distribution Amount shall be made in the following
amounts and order of priority:
(i) to
the
Holders of the Group I Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; and
(ii) after
taking into account the amount distributed to the Holders of the Group II
Certificates pursuant to Section 4.01(b)(II)(i) below on such Distribution
Date,
to the Holders of the Group II Certificates (allocated among the Group II
Certificates in the priority described below), until the Certificate Principal
Balances thereof have been reduced to zero.
(II) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, distributions in respect of principal to the extent of the Group
II Principal Distribution Amount shall be made in the following amounts and
order of priority:
(i) to
the
Holders of the Group II Certificates (allocated among Group II Certificates
in
the priority described below), until the Certificate Principal Balances thereof
have been reduced to zero; and
(ii) after
taking into account the amount distributed to the Holders of the Group I
Certificates pursuant to Section 4.01(b)(I)(i) above on such Distribution Date,
to the Holders of the Group I Certificates, until the Certificate Principal
Balance thereof has been reduced to zero.
(III) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, distributions in respect of principal to the extent of the sum
of
the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount remaining undistributed for such Distribution Date shall
be
distributed sequentially, to the Holders of the Class M-1 Certificates, the
Class M-2 Certificates, the Class M-3 Certificates, the Class M-4 Certificates,
the Class M-5 Certificates, the Class M-6 Certificates, the Class M-7
Certificates, the Class M-8 Certificates (concurrently, to the holders of the
Class M-8A Certificates and the Class M-8B Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such class), the Class M-9
Certificates and the Class M-10 Certificates, in that order, in each case,
until
the Certificate Principal Balance thereof has been reduced to zero.
(IV) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the Group I Principal Distribution Amount shall be made in the following amounts
and order of priority:
(i) to
the
Holders of the Group I Certificates, the Group I Senior Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
and
(ii) to
the
Holders of the Group II Certificates (allocated among Group II Certificates
in
the priority described below), an amount equal to the excess, if any, of (x)
the
amount required to be distributed pursuant to Section 4.01(b)(V)(i) below for
such Distribution Date over (y) the amount actually distributed pursuant to
Section 4.01(b)(V)(i) below from the Group II Principal Distribution Amount
on
such Distribution Date.
(V) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the Group II Principal Distribution Amount shall be made in the following
amounts and order of priority:
(i) to
the
Holders of the Group II Certificates (allocated among Group II Certificates
in
the priority described below), the Group II Senior Principal Distribution Amount
until the Certificate Principal Balances thereof have been reduced to zero;
and
(ii) to
the
Holders of the Group I Certificates, an amount equal to the excess, if any,
of
(x) the amount required to be distributed pursuant to Section 4.01(b)(IV)(i)
above for such Distribution Date over (y) the amount actually distributed
pursuant to Section 4.01(b)(IV)(i) above from the Group I Principal Distribution
Amount on such Distribution Date.
(VI) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the sum of the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount remaining undistributed for such Distribution Date shall
be
made in the following amounts and order of priority:
(i) to
the
Holders of the Class M-1 Certificates, the Class M-1 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(ii) to
the
Holders of the Class M-2 Certificates, the Class M-2 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iii) to
the
Holders of the Class M-3 Certificates, the Class M-3 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iv) to
the
Holders of the Class M-4 Certificates, the Class M-4 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(v) to
the
Holders of the Class M-5 Certificates, the Class M-5 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vi) to
the
Holders of the Class M-6 Certificates, the Class M-6 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vii) to
the
Holders of the Class M-7 Certificates, the Class M-7 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(viii) concurrently,
to the Holders of the Class M-8 Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such class, the Class M-8
Principal Distribution Amount, until the Certificate Principal Balance thereof
have been reduced to zero;
(ix) to
the
Holders of the Class M-9 Certificates, the Class M-9 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
and
(x) to
the
Holders of the Class M-10 Certificates, the Class M-10 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero.
With
respect to the Group II Certificates, all principal distributions will be
distributed sequentially, first, to the Holders of the Class II-A-1
Certificates, until the Certificate Principal Balance of the Class II-A-1
Certificates has been reduced to zero; second, to the Holders of the Class
II-A-2 Certificates, until the Certificate Principal Balance of the Class II-A-2
Certificates has been reduced to zero; third, to the Holders of the Class II-A-3
Certificates, until the Certificate Principal Balance of the Class II-A-3
Certificates has been reduced to zero and fourth, to the Holders of the Class
II-A-4 Certificates, until the Certificate Principal Balance of the Class II-A-4
Certificates has been reduced to zero; provided, however, on any Distribution
Date on which the aggregate Certificate Principal Balance of the Mezzanine
Certificates and the Class C Certificates has been reduced to zero, all
principal distributions will be distributed concurrently, to the Holders of
the
Senior Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such Class.
(c) On
each
Distribution Date, the Net Monthly Excess Cashflow shall be distributed as
follows:
(i) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, distributable to such Holders as part of the Group I
Principal Distribution Amount and/or the Group II Principal Distribution Amount
as described under Section 4.01(b) above;
(ii) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates, the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates (concurrently, to the holders of the Class M-8A Certificates and
the Class M-8B Certificates, on a pro
rata
basis
based on the entitlement of each such class), the Class M-9 Certificates and
the
Class M-10 Certificates, in that order, first, up to the Unpaid Interest
Shortfall Amount for each such Class and second, up to the Allocated Realized
Loss Amount for each such Class;
(iii) to
the
Net WAC Rate Carryover Reserve Account, the aggregate of any Net WAC Rate
Carryover Amounts for the Floating Rate Certificates which exceed the amounts
received under the Basis Risk Cap Agreement, without taking into account
amounts, if any, received
by the Supplemental Interest Trust Trustee under the Interest Rate Swap
Agreement or the Cap Trustee under the Interest Rate Cap Agreement;
(iv) to
the
Supplemental Interest Trust Trustee for payment to the Swap Provider, any Swap
Termination Payments resulting from a Swap Provider Trigger Event;
(v) to
the
Holders of the Class C Certificates, (a) the Monthly Interest Distributable
Amount for such Distribution Date and any Overcollateralization Release Amount
for such Distribution Date and (b) on any Distribution Date on which the
Certificate Principal Balances of the Floating Rate Certificates have been
reduced to zero, any remaining amounts in reduction of the Certificate Principal
Balance of the Class C Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
(vi) if
such
Distribution Date follows the Prepayment Period during which occurs the latest
date on which a Prepayment Charge may be required to be paid in respect of
any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction of
the
Certificate Principal Balance thereof, until the Certificate Principal Balance
thereof is reduced to zero;
(vii) to
the
Holders of the Class X Certificates, any recoveries in respect of the Charged
Off Loans; and
(viii) any
remaining amounts to the Holders of the Residual Certificates (in respect of
the
Class R-4 Interest).
(d) On
each
Distribution Date, after making the distributions of the Available Funds as
set
forth above, the Trust Administrator shall withdraw from the Net WAC Rate
Carryover Reserve Account, to the extent of amounts remaining on deposit
therein, the aggregate of any Net WAC Rate Carryover Amounts for such
Distribution Date and distribute such amount in the following order of
priority:
(i) concurrently,
to each Class of Senior Certificates, the related Basis Risk Cap Amount, from
payments made under the Basis Risk Cap Agreement, in each case up to a maximum
amount equal to the related Net WAC Rate Carryover Amount for such Distribution
Date;
(ii) sequentially,
the Class M-1 Certificates, the Class M-2 Certificates, the Class M-3
Certificates, the Class M-4 Certificates, the Class M-5 Certificates, the Class
M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates
(concurrently, to the holders of the Class M-8A Certificates and the Class
M-8B
Certificates, on a pro
rata basis
based on
the entitlement of each such class), the Class M-9 Certificates and the Class
M-10 Certificates, in that order, the related Basis Risk Cap Amount, from
payments made under the Basis Risk Cap Agreement, in each case up to a maximum
amount equal to the related Net WAC Rate Carryover Amount for such Distribution
Date;
(iii) concurrently,
to each Class of Senior Certificates, the related Net WAC Rate Carryover Amount
remaining undistributed pursuant to clause (i) above, on a pro
rata
basis
based on such respective remaining Net WAC Rate Carryover Amounts;
and
(iv) sequentially,
to the Class M-1 Certificates, the Class M-2 Certificates, the Class M-3
Certificates, the Class M-4 Certificates, the Class M-5 Certificates, the Class
M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates
(concurrently,
to the holders of the Class M-8A Certificates and the Class M-8B Certificates,
on a pro
rata
basis
based on the entitlement of each such class),
the
Class M-9 Certificates and the Class M-10 Certificates, in that order, the
related Net WAC Rate Carryover Amount remaining undistributed pursuant to clause
(ii) above.
(e) On
or
before each Distribution Date, Net Swap Payments (whether payable to the Swap
Provider or to the Supplemental Interest Trust Trustee), any Swap Termination
Payment owed to the Swap Provider not resulting from a Swap Provider Trigger
Event pursuant to the Interest Rate Swap Agreement and any Swap Termination
Payments owed to the Supplemental Interest Trust Trustee will be deposited
by
the Supplemental Interest Trust Trustee into the Swap Account. On each
Distribution Date, the Trust Administrator shall withdraw from amounts on
deposit in the Swap Account (other than amounts representing Swap Termination
Payments received by the Supplemental Interest Trust Trustee or Net Swap
Payments received by the Supplemental Interest Trust Trustee) prior to any
distribution to any Certificates as follows:
(i) to
the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant to the
Interest Rate Swap Agreement for such Distribution Date; and
(ii) to
the
Swap Provider, any Swap Termination Payment owed to the Swap Provider not due
to
a Swap Provider Trigger Event pursuant to the Interest Rate Swap Agreement
and
to the extent not paid by the Trust Administrator (in its capacity as
Supplemental Interest Trust Trustee) from any upfront payment received pursuant
to any replacement interest rate swap agreement.
On
each
Distribution Date, after making the distributions of the Available Funds, Net
Monthly Excess Cashflow and amounts on deposit in the Net WAC Rate Carryover
Reserve Account as set forth above, the Trust Administrator shall distribute
the
amount on deposit in the Swap Account as follows:
(i) concurrently,
to each Class of Senior Certificates, the related Monthly Interest Distributable
Amount and Unpaid Interest Shortfall Amount remaining undistributed, on a
pro
rata
basis
based on such respective remaining Monthly Interest Distributable Amount and
Unpaid Interest Shortfall Amount;
(ii) sequentially,
to the Class M-1 Certificates,
Class
M-2 Certificates, Class M-3 Certificates, Class M-4 Certificates, Class M-5
Certificates, Class M-6 Certificates, Class M-7 Certificates, Class M-8
Certificates (concurrently,
to the holders of the Class M-8A Certificates and the Class M-8B Certificates,
on a pro
rata
basis
based on the entitlement of each such class),
Class
M-9 Certificates and Class M-10 Certificates, in that order, the related Monthly
Interest Distributable Amount and Unpaid Interest Shortfall Amount, to the
extent remaining undistributed;
(iii) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, distributable to such Holders as part of the Group I
Principal Distribution Amount and/or the Group II Principal Distribution
Amount;
(iv) sequentially
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates (concurrently,
to the holders of the Class M-8A Certificates and the Class M-8B Certificates,
on a pro
rata
basis
based on the entitlement of each such class),
Class
M-9 Certificates and Class M-10 Certificates, in that order, in each case up
to
the related Allocated Realized Loss Amount related to such Certificates for
such
Distribution Date remaining undistributed;
(v) concurrently,
to each Class of Senior Certificates, the related Net WAC Rate Carryover Amount,
to the extent remaining undistributed after distributions are made from the
Net
WAC Rate Carryover Reserve Account, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
(vi) sequentially,
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates (concurrently,
to the holders of the Class M-8A Certificates and the Class M-8B Certificates,
on a pro
rata
basis
based on the entitlement of each such class),
Class
M-9 Certificates and Class M-10 Certificates, in that order, the related Net
WAC
Rate Carryover Amount, to the extent remaining undistributed after distributions
are made from the Net WAC Rate Carryover Reserve Account; and
(vii) any
remaining amounts to the Holders of the Class C Certificates.
Notwithstanding
any of the foregoing, the aggregate amount distributed under Section
4.01(e)(iii) above on such Distribution Date, when added to the cumulative
amount distributed under Section 4.01(e)(iii) above on all prior Distribution
Dates, will not be permitted to exceed the cumulative amount of Realized Losses
incurred on the Mortgage Loans since the Cut-off Date through the last day
of
the Prepayment Period (reduced by the aggregate amount of Subsequent Recoveries
received since the Cut-off date through the last day of the Prepayment Period).
Any amounts that would otherwise be distributable from the Supplemental Interest
Trust on any Distribution Date under Section 4.01(e)(iii) above, but for the
foregoing proviso, will be retained in the Supplemental Interest Trust and
will
be included in amounts available for distribution from the Supplemental Interest
Trust on the next succeeding Distribution Date, subject to the foregoing proviso
in the case of amounts to be distributed under Section 4.01(e)(iii)
above.
(f) On
each
Distribution Date, after making the distributions of the Available Funds, Net
Monthly Excess Cashflow, amounts on deposit in the Net WAC Rate Carryover
Reserve Account and amounts on deposit in the Swap Account as set forth above,
the Trust Administrator shall distribute the amount on deposit in the Cap
Account as follows:
(i) concurrently,
to each Class of Senior Certificates, the related Monthly Interest Distributable
Amount and Unpaid Interest Shortfall Amount remaining undistributed, on a
pro
rata
basis
based on such respective remaining Monthly Interest Distributable Amount and
Unpaid Interest Shortfall Amount;
(ii) sequentially,
to the Class M-1 Certificates,
Class
M-2 Certificates, Class M-3 Certificates, Class M-4 Certificates, Class M-5
Certificates, Class M-6 Certificates, Class M-7 Certificates, Class M-8
Certificates (concurrently,
to the holders of the Class M-8A Certificates and the Class M-8B Certificates,
on a pro
rata
basis
based on the entitlement of each such class),
Class
M-9 Certificates and Class M-10 Certificates,, in that order, the related
Monthly Interest Distributable Amount and Unpaid Interest Shortfall Amount,
to
the extent remaining undistributed;
(iii) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Group I Principal Distribution Amount and/or the Group II Principal Distribution
Amount;
(iv) sequentially
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates (concurrently,
to the holders of the Class M-8A Certificates and the Class M-8B Certificates,
on a pro
rata
basis
based on the entitlement of each such class),
Class
M-9 Certificates and Class M-10 Certificates,, in that order, in each case
up to
the related Allocated Realized Loss Amount related to such Certificates for
such
Distribution Date remaining undistributed;
(v) concurrently,
to each Class of Senior Certificates, the related Net WAC Rate Carryover Amount,
to the extent remaining undistributed after distributions are made from the
Net
WAC Rate Carryover Reserve Account, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
(vi) sequentially,
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates (concurrently,
to the holders of the Class M-8A Certificates and the Class M-8B Certificates,
on a pro
rata
basis
based on the entitlement of each such class) and
Class
M-9 Certificates, in that order, the related Net WAC Rate Carryover Amount,
to
the extent remaining undistributed after distributions are made from the Net
WAC
Rate Carryover Reserve Account; and
(vii) any
remaining amounts to the Sponsor or its designee, as set forth in the Cap
Allocation Agreement.
(g) On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period and the Servicer
Prepayment Charge Payment Amounts paid by the related Servicer during the
related Prepayment Period will be withdrawn from the Distribution Account and
distributed by the Trust Administrator to the Holders of the Class P
Certificates and shall not be available for distribution to the Holders of
any
other Class of Certificates. The payment of the foregoing amounts to the Holders
of the Class P Certificates shall not reduce the Certificate Principal Balances
thereof.
(h) On
each
Distribution Date, all amounts representing income and gain realized from
the
investment of funds deposited in the Distribution Account during the Float
Period, will be withdrawn from the Distribution Account and distributed by
the
Trust Administrator to the Holders of the Class FL Certificates and shall
not be
available for distribution to the Holders of any other Class of Certificates.
The payment of the foregoing amounts to the Holders of the Class FL Certificates
shall not reduce the Certificate Principal Balances thereof.
(i) The
Trust
Administrator shall make distributions in respect of a Distribution Date to
each
Certificateholder of record on the related Record Date (other than as provided
in Section 10.01 respecting the final distribution), in the case of
Certificateholders of the Regular Certificates, by check or money order mailed
to such Certificateholder at the address appearing in the Certificate Register,
or by wire transfer. Distributions among Certificateholders shall be made in
proportion to the Percentage Interests evidenced by the Certificates held by
such Certificateholders.
(j) Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, which shall credit the amount of such distribution to the accounts
of its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. All such credits and disbursements
with respect to a Book-Entry Certificate are to be made by the Depository and
the Depository Participants in accordance with the provisions of the
Certificates. None of the Trustee, the Depositor or the Servicer shall have
any
responsibility therefor except as otherwise provided by applicable
law.
On
each
Distribution Date, following the foregoing distributions, an amount equal to
the
amount of Subsequent Recoveries deposited into the Collection Account pursuant
to Section 3.10 shall be applied to increase the Certificate Principal Balance
of the Class of Certificates with the Highest Priority up to the extent of
such
Realized Losses previously allocated to that Class of Certificates pursuant
to
Section 4.08. An amount equal to the amount of any remaining Subsequent
Recoveries shall be applied to increase the Certificate Principal Balance of
the
Class of Certificates with the next Highest Priority, up to the amount of such
Realized Losses previously allocated to that Class of Certificates pursuant
to
Section 4.08. Holders of such Certificates will not be entitled to any
distribution in respect of interest on the amount of such increases for any
Interest Accrual Period preceding the Distribution Date on which such increase
occurs. Any such increases shall be applied to the Certificate Principal Balance
of each Certificate of such Class in accordance with its respective Percentage
Interest.
(k) It
is the
intention of all of the parties hereto that the Class C Certificates receive
all
principal and interest received by the Trust on the Mortgage Loans that is
not
otherwise distributable to any other Class of Regular Certificates or REMIC
Regular Interests and that the Residual Certificates are to receive no principal
and interest. If the Trust Administrator determines that the Residual
Certificates are entitled to any distributions, the Trust Administrator, prior
to any such distribution to any Residual Certificate, shall notify the Depositor
of such impending distribution but shall make such distribution in accordance
with the terms of this Agreement until this Agreement is amended as specified
in
the following sentence. Upon such notification, the Depositor will request
an
amendment to the Pooling and Servicing Agreement to revise such mistake in
the
distribution provisions. The Residual Certificate Holders, by acceptance of
their Certificates, and the Servicer(s), hereby agree to any such amendment
and
no further consent shall be necessary, notwithstanding anything to the contrary
in Section 11.01 of this Pooling and Servicing Agreement; provided, however,
that such amendment shall otherwise comply with Section 11.01
hereof.
| SECTION 4.02 |
[Reserved].
|
| SECTION 4.03 |
Statements.
|
(a) On
each
Distribution Date, based, as applicable, on information provided to the Trust
Administrator by the Master Servicer (which in turn shall be based, as
applicable, on information provided to the Master Servicer by the Servicers)
the
Trust Administrator shall prepare and make available to each Holder of the
Regular Certificates, each Servicer, the Credit Risk Manager and the Rating
Agencies, a statement as to the distributions made on such Distribution
Date:
(i) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates, separately identified, allocable to principal
and
the amount of the distribution made to the Holders of the Class P Certificates
allocable to Prepayment Charges and Servicer Prepayment Charge Payment
Amounts;
(ii) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates (other than the Class P Certificates) allocable
to
interest, separately identified;
(iii) the
Net
Monthly Excess Cashflow, the Overcollateralized Amount, the
Overcollateralization Release Amount, the Overcollateralization Deficiency
Amount and the Overcollateralization Target Amount as of such Distribution
Date
and the Excess Overcollateralized Amount for the Mortgage Pool for such
Distribution Date;
(iv) the
fees
and expenses of the Trust Fund accrued and paid on such Distribution Date and
to
whom such fees and expenses were paid;
(v) the
aggregate amount of Advances for the related Due Period (including the general
purpose of such Advances);
(vi) the
Pool
Balance at the Close of Business at the end of the related Due
Period;
(vii) the
number, aggregate Stated Principal Balance, weighted average remaining term
to
maturity and weighted average Mortgage Rate of the Mortgage Loans as of the
related Determination Date;
(viii) the
number and aggregate unpaid Stated Principal Balance of Mortgage Loans (not
including a Liquidated Mortgage Loan as of the end of the Prepayment Period)
that were (A) Delinquent (exclusive of Mortgage Loans in bankruptcy or
foreclosure and REO Properties) using the OTS Method (as described below) (1)
30
to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B) as to which
foreclosure proceedings have been commenced and Delinquent (1) 30 to 59 days,
(2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and Delinquent
(1)
30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case as of
the
Close of Business on the last day of the calendar month preceding such
Distribution Date and (D) REO Properties, as well as the aggregate principal
balance of Mortgage Loans that were liquidated and the net proceeds resulting
therefrom;
(ix) the
total
number and cumulative Stated Principal Balance of all REO Properties as of
the
Close of Business of the last day of the calendar month preceding the related
Distribution Date;
(x) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period, separately indicating Principal Prepayments in full and Principal
Prepayments in part;
(xi) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period, which will include the aggregate amount of Subsequent Recoveries
received during the related Prepayment Period and the aggregate amount of
Realized Losses incurred since the Closing Date, which will include the
cumulative amount of Subsequent Recoveries received since the Closing
Date;
(xii) the
aggregate amount of extraordinary Trust Fund expenses withdrawn from the
Collection Account or the Distribution Account for such Distribution
Date;
(xiii) the
Certificate Principal Balance of each Class of Floating Rate Certificates and
the Class C Certificates, before and after giving effect to the distributions
made on such Distribution Date;
(xiv) the
Monthly Interest Distributable Amount in respect of the Floating Rate
Certificates and the Class C Certificates for such Distribution Date and the
Unpaid Interest Shortfall Amount, if any, with respect to the Floating Rate
Certificates for such Distribution Date;
(xv) the
aggregate amount of any Prepayment Interest Shortfalls for such Distribution
Date, to the extent not covered by payments by the related Servicer pursuant
to
Section 3.24 or pursuant to the related Servicing Agreement;
(xvi) the
Credit Enhancement Percentage for such Distribution Date;
(xvii) the
Net
WAC Rate Carryover Amount for the Floating Rate Certificates, if any, for such
Distribution Date and the amount remaining unpaid after reimbursements therefor
on such Distribution Date;
(xviii) whether
the Stepdown Date or a Trigger Event has occurred, the Delinquency Percentage
for such Distribution Date and the Realized Loss Percentage for such
Distribution Date;
(xix) the
total
cashflows received and the general sources thereof (including amounts received
from the Supplemental Interest Trust Trustee under the Interest Rate Swap
Agreement, from the Cap Trustee under the Interest Rate Cap Agreement and under
the Basis Risk Cap Agreement);
(xx) the
respective Pass-Through Rates applicable to the Floating Rate Certificates
and
the Class C Certificates for such Distribution Date and the Pass-Through Rate
applicable to the Floating Rate Certificates for the immediately succeeding
Distribution Date;
(xxi) payments,
if any, made under the Basis Risk Cap Agreement and the Interest Rate Cap
Agreement and the amount distributed to the Floating Rate Certificates from
such
payments;
(xxii) the
amount of any Net Swap Payments or Swap Termination Payments paid to the Swap
Provider; and
(xxiii) the
applicable Record Date, Accrual Period and any other applicable determination
dates for calculating distributions for such Distribution Date.
The
Trust
Administrator will make such statement (and, at its option, any additional
files
containing the same information in an alternative format) available each month
to Certificateholders, the Master Servicer, the Servicers, the Depositor and
the
Rating Agencies via the Trust Administrator’s internet website. The Trust
Administrator’s internet website shall initially be located at
“xxx.xxxxxxx.xxx”. Assistance in using the website can be obtained by calling
the Trust Administrator’s customer service desk at (000) 000-0000. Parties that
are unable to use the above distribution options are entitled to have a paper
copy mailed to them via first class mail by calling the customer service desk
and indicating such. The Trust 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 Trust
Administrator shall provide timely and adequate notification to all above
parties regarding any such changes. As a condition to access the Trust
Administrator’s internet website, the Trust Administrator may require
registration and the acceptance of a disclaimer. The Trust Administrator will
not be liable for the dissemination of information in accordance with this
Agreement. The Trust Administrator shall also be entitled to rely on but shall
not be responsible for the content or accuracy of any information provided
by
third parties for purposes of preparing the distribution date statement and
may
affix thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party
thereto).
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall be expressed in a separate section of the report as a dollar
amount for each Class for each $1,000 original dollar amount as of the Cut-off
Date.
For
all
purposes of this Agreement, with respect to any Mortgage Loan, delinquencies
shall be determined by the Trust Administrator from information provided by
the
Servicer and reported by the Trust Administrator based on the “OTS” methodology
for determining delinquencies on mortgage loans similar to the Mortgage Loans.
By way of example, a Mortgage Loan would be Delinquent with respect to a Monthly
Payment due on a Due Date if such Monthly Payment is not made by the close
of
business on the Mortgage Loan’s next succeeding Due Date, and a Mortgage Loan
would be more than 30-days Delinquent with respect to such Monthly Payment
if
such Monthly Payment were not made by the close of business on the Mortgage
Loan’s second succeeding Due Date. Ocwen hereby represents and warrants to the
Depositor that this delinquency recognition policy is not less restrictive
than
any delinquency recognition policy established by the primary safety and
soundness regulator, if any, of Ocwen.
(b) Within
a
reasonable period of time after the end of each calendar year, the Trust
Administrator shall, upon written request, furnish to each Person who at any
time during the calendar year was a Certificateholder of a Regular Certificate,
if requested in writing by such Person, such information as is reasonably
necessary to provide to such Person a statement containing the information
set
forth in subclauses (i) and (ii) above, aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trust Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
prepared and furnished by the Trust Administrator to Certificateholders pursuant
to any requirements of the Code as are in force from time to time.
(c) On
each
Distribution Date, the Trust Administrator shall make available to the Residual
Certificateholders a copy of the reports forwarded to the Regular
Certificateholders in respect of such Distribution Date with such other
information as the Trust Administrator deems necessary or
appropriate.
(d) Within
a
reasonable period of time after the end of each calendar year, the Trust
Administrator shall deliver to each Person who at any time during the calendar
year was a Residual Certificateholder, if requested in writing by such Person,
such information as is reasonably necessary to provide to such Person a
statement containing the information provided pursuant to the previous paragraph
aggregated for such calendar year or applicable portion thereof during which
such Person was a Residual Certificateholder. Such obligation of the Trust
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be prepared and furnished to
Certificateholders by the Trust Administrator pursuant to any requirements
of
the Code as from time to time in force.
| SECTION 4.04 |
Remittance
Reports; Advances.
|
(a) Not
later
than the 17th
day of
each calendar month or if such 17th
day is
not a Business Day, the following Business Day, Ocwen
shall
furnish to the Master Servicer a monthly remittance advice (which together
with
any supplemental reports is known as the “Remittance Report”) in a format
attached as Exhibit R-2 or in any other format as mutually agreed to between
Ocwen and the Master Servicer, containing such information regarding the Ocwen
Mortgage Loans as is needed by the Master Servicer to perform its duties as
set
forth in Section 4.01 and 4.02 hereof. Such Remittance Report will also include
a delinquency report substantially in the form set forth in Exhibit R-1 and
a
realized loss report substantially in the form set forth in Exhibit R-3 (or
in
either case, such other format as mutually agreed to between Ocwen and the
Master Servicer). The Master Servicer shall not be responsible to recompute,
recalculate or verify any information provided to it by the
Servicer.
(b) The
amount of Advances to be made by Ocwen for any Distribution Date shall equal,
subject to Section 4.04(d), the sum of (i) the aggregate amount of Monthly
Payments (net of the related Servicing Fee), due during the related Due Period
in respect of the Ocwen Mortgage Loans (other than with respect to any REO
Property or second lien Ocwen Mortgage Loan as described in clauses (ii) and
(iii) below or a Balloon Mortgage Loan as described below), which Monthly
Payments were delinquent on a contractual basis as of the Close of Business
on
the related Determination Date, (ii) with respect to each REO Property serviced
by Ocwen, which REO Property was acquired during or prior to the related Due
Period and as to which REO Property an REO Disposition did not occur during
the
related Due Period, an amount equal to the excess, if any, of the REO Imputed
Interest on such REO Property for the most recently ended calendar month, over
the net income from such REO Property transferred to the Distribution Account
pursuant to Section 3.23 for distribution on such Distribution Date and (iii)
with respect to each second lien Ocwen Mortgage Loan, an amount equal to the
interest portion of the related Monthly Payment (net of the related Servicing
Fee). For purposes of the preceding sentence, the Monthly Payment on each
Balloon Mortgage Loan serviced by Ocwen with a delinquent Balloon Payment is
equal to the assumed monthly payment that would have been due on the related
Due
Date based on the original principal amortization schedule for such Balloon
Mortgage Loan and not the entire Balloon Payment. In addition, Ocwen shall
not
be required to advance any Relief Act Interest Shortfalls or to cover Prepayment
Interest Shortfalls in excess of its obligations under Section
3.24.
On
or
before the Servicer Remittance Date, Ocwen shall remit in immediately available
funds to the Trust Administrator for deposit in the Distribution Account an
amount equal to the aggregate amount of Advances, if any, to be made in respect
of the Ocwen Mortgage Loans and related REO Properties for the related
Distribution Date either (i) from its own funds or (ii) from the Collection
Account, to the extent of funds held therein for future distribution (in which
case it will cause to be made an appropriate entry in the records of Collection
Account that amounts held for future distribution have been, as permitted by
this Section 4.04, used by Ocwen in discharge of any such Advance) or (iii)
in
the form of any combination of (i) and (ii) aggregating the total amount of
Advances to be made by Ocwen with respect to the Ocwen Mortgage Loans and
related REO Properties. Any amounts held for future distribution used by Ocwen
to make an Advance as permitted in the preceding sentence shall be appropriately
reflected in Ocwen’s records and replaced by Ocwen by deposit in the Collection
Account on or before any future Servicer Remittance Date to the extent that
the
Available Funds for the related Distribution Date (determined without regard
to
Advances to be made on the Servicer Remittance Date) shall be less than the
total amount that would be distributed to the Classes of Certificateholders
pursuant to Section 4.01 on such Distribution Date if such amounts held for
future distributions had not been so used to make Advances. The Trust
Administrator will provide notice to Ocwen
by
telecopy by the Close of Business on any Servicer Remittance Date in the event
that the amount remitted by Ocwen to the Trust Administrator on such date is
less than the Advances required to be made by Ocwen for the related Distribution
Date, as set forth in the related Remittance Report.
(c) The
obligation of Ocwen to make such Advances is mandatory, notwithstanding any
other provision of this Agreement but subject to (d) below, and, with respect
to
any Ocwen Mortgage Loan, shall continue until the Ocwen Mortgage Loan is paid
in
full or until all Liquidation Proceeds thereon have been recovered, or a Final
Recovery Determination has been made thereon.
(d) If
the
Monthly Payment on a Mortgage Loan that was due on a related Due Date and is
delinquent, other than as a result of application of the Relief Act, and for
which Ocwen was required to make an advance pursuant to this Agreement or for
which the related Servicer was required to make an advance pursuant to the
applicable Servicing Agreement exceeds the amount deposited in the Distribution
Account which will be used for an advance with respect to such Mortgage Loan,
the Master Servicer as successor servicer will deposit in the Distribution
Account not later than the Business Day immediately preceding the related
Distribution Date an amount equal to such deficiency, net of the Servicing
Fee
and the Master Servicing Fee, for such Mortgage Loan except to the extent the
Master Servicer as successor servicer determines any such Advance to be
Nonrecoverable from Liquidation Proceeds, Insurance Proceeds or future payments
on the Mortgage Loan for which such Advance was made. Subject to the foregoing,
the Master Servicer as successor servicer shall continue to make such Advances
through the date that Ocwen or the related Servicer is required to do so under
this Agreement or the applicable Servicing Agreement, as applicable.
(e) Notwithstanding
anything herein to the contrary, no Advance or Servicing Advance shall be
required to be made hereunder by Ocwen or the Master Servicer if such Advance
or
Servicing Advance would, if made, constitute a Nonrecoverable Advance. The
determination by Ocwen or the Master Servicer that it has made a Nonrecoverable
Advance or that any proposed Advance or Servicing Advance, if made, would
constitute a Nonrecoverable Advance, shall be evidenced by a certification
of a
Servicing Officer delivered to the Trust Administrator (whereupon, upon receipt
of such certification, the Trust Administrator shall forward a copy of such
certification to the Depositor, the Trustee and the Credit Risk Manager).
Notwithstanding the foregoing, if following the application of Liquidation
Proceeds on any Ocwen Mortgage Loan that was the subject of a Final Recovery
Determination, any Servicing Advance with respect to such Ocwen Mortgage Loan
shall remain unreimbursed to Ocwen, then without limiting the provisions of
Section 3.11(a), a certification of a Servicing Officer regarding such
Nonrecoverable Servicing Advance shall not be required to be delivered by Ocwen
to the Trust Administrator.
| SECTION 4.05 |
Commission
Reporting.
|
(a) (i)
Using
best efforts, within 10 days after each Distribution Date, and no later than
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Trust Administrator shall, in accordance with industry
standards, prepare and file, on behalf of the Trust, with the Commission via
the
Electronic Data Gathering and Retrieval System (“XXXXX”), any Form 10-D required
by the Exchange Act, in form and substance as required by the Exchange Act,
signed by the Master Servicer, with a copy of the monthly statement to be
furnished by the Trust Administrator to the Certificateholders for such
Distribution Date. Any disclosure in addition to the monthly statement that
is
required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall,
be reported by the parties set forth on Exhibit T to the Depositor and the
Trust
Administrator and directed and approved by the Depositor pursuant to the
following paragraph, and the Trust 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) For
so
long as the Trust is subject to the reporting requirements of the Exchange
Act,
within 3 calendar days after the related Distribution Date, (i) the parties
set
forth in Exhibit T shall be required to provide, pursuant to Section 4.05(a)(v)
below, to the Trust Administrator (by email at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
and by
facsimile at 410-715-2380) and the Depositor, to the extent known, in
XXXXX-compatible format, or in such other format as otherwise agreed upon by
the
Trust Administrator and such party, the form and substance of any Additional
Form 10-D Disclosure, if applicable, together with an Additional Disclosure
Notification in the form attached hereto as Exhibit P (an “Additional Disclosure
Notification”) and (ii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Additional Form 10-D
Disclosure on Form 10-D. The Trust Administrator has no duty under this
Agreement to monitor or enforce the performance by the parties listed on Exhibit
T of their duties under this paragraph or proactively solicit or procure from
such parties any Additional Form 10-D Disclosure information. The Depositor
will
be responsible for any reasonable fees and expenses assessed or incurred by
the
Trust Administrator in connection with including any Additional Form 10-D
Disclosure on Form 10-D pursuant to this Section.
After
preparing the Form 10-D, the Trust Administrator shall, upon request, forward
electronically a copy of the Form 10-D to the Depositor for review, only to
the
extent that the Form 10-D contains Additional Form 10-D Disclosure. Within
two
Business Days after receipt of such copy, but no later than the 7th calendar
day
(on a best efforts basis, and in no event later than the 12th calendar day)
after the Distribution Date, the Depositor shall notify the Trust Administrator
in writing (which may be furnished electronically) of any changes to or approval
of such Form 10-D. In the absence of receipt of any written changes or approval,
or if the Depositor does not request a copy of a Form 10-D, the Trust
Administrator shall be entitled to assume that such Form 10-D is in final form
and the Trust Administrator may proceed with the execution and filing of the
Form 10-D. A duly authorized representative of the Master Servicer shall sign
each Form 10-D. If a Form 10-D cannot be filed on time or if a previously filed
Form 10-D needs to be amended, the Trust Administrator will follow the
procedures set forth in Section 4.05(a)(vi). Promptly (but no later than 1
Business Day) after filing with the Commission, the Trust Administrator will
make available on its internet website a final executed copy of each Form 10-D
filed by the Trust Administrator. The parties to this Agreement acknowledge
that
the performance by the Master Servicer and the Trust Administrator of its duties
under Sections 4.05(a)(i), (ii) and (v) 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 such Sections.
The
Depositor acknowledges that the performance by the Master Servicer and the
Trust
Administrator of its duties under this Section 4.05(a)(ii) related to the timely
preparation, execution and filing of Form 10-D is also contingent upon each
Servicer, the Custodians and any Sub-Servicer or Subcontractor strictly
observing deadlines no later than those set forth in this paragraph that are
applicable to the parties to this Agreement in the delivery to the Trust
Administrator of any necessary Additional Form 10-D Disclosure pursuant to
the
Custodial Agreement or any other applicable agreement. Neither the Master
Servicer nor the Trust Administrator shall have any liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file such Form 10-D and Form 10-K,
where
such failure results from the Trust Administrator’s inability or failure to
receive, on a timely basis, any information from any other party hereto or
any
Custodian, Sub-Servicer or Subcontractor needed to prepare, arrange for
execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
Form
10-D
requires the registrant to indicate (by checking “yes” or “no”) that it (1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. The Depositor hereby represents to
the
Trust Administrator that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirements for the past 90 days. The Depositor shall notify the Trust
Administrator in writing, no later than the fifth calendar day after the related
Distribution Date with respect to filing of a report on Form 10-D, if the answer
to either question should be “no.” The Trust Administrator shall be entitled to
rely on such representations in preparing, executing and/or filing any such
Form
10-D.
(iii) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), and if requested by the
Depositor, the Trust Administrator shall prepare and file on behalf of the
Trust
a Form 8-K, as required by the Exchange Act, provided that the Depositor shall
file the initial Form 8-K in connection with the issuance of the Certificates.
Any disclosure or information related to a Reportable Event or that is otherwise
required to be included on Form 8-K other than the initial Form 8-K (“Form 8-K
Disclosure Information”) shall, be reported by the parties set forth on Exhibit
T to the Depositor and the Trust Administrator and directed and approved by
the
Depositor, pursuant to the following paragraph, and the Trust 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.
For
so
long as the Trust is subject to the Exchange Act reporting requirements, no
later than the close of business (New York City Time) on the 2nd
Business
Day after the occurrence of a Reportable Event (i) the parties set forth in
Exhibit T shall be required pursuant to Section 4.05(a)(v) below to provide
to
the Trust Administrator and the Depositor, to the extent known, in
XXXXX-compatible format, or in such other format as otherwise agreed upon by
the
Trust Administrator and such party, the form and substance of any Form 8-K
Disclosure Information, if applicable, together with an Additional Disclosure
Notification and (ii) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trust Administrator in connection
with including any Form 8-K Disclosure Information on Form 8-K pursuant to
this
Section.
After
preparing the Form 8-K, the Trust Administrator shall, upon request, forward
electronically a copy of the Form 8-K to the Depositor for review. Promptly,
but
no later than the close of business on the third Business Day after the
Reportable Event, the Depositor shall notify the Trust Administrator in writing
(which may be furnished electronically) of any changes to or approval of such
Form 8-K. In the absence of receipt of any written changes or approval, or
if
the Depositor does not request a copy of a Form 8-K, the Trust Administrator
shall be entitled to assume that such Form 8-K is in final form and the Trust
Administrator may proceed with the execution and filing of the Form 8-K. A
duly
authorized representative of the Master Servicer shall sign each Form 8-K.
If a
Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to
be
amended, the Trust Administrator will follow the procedures set forth in Section
4.05(a)(vi). Promptly (but no later than 1 Business Day) after filing with
the
Commission, the Trust Administrator will make available on its internet website
a final executed copy of each Form 8-K filed by it. The parties to this
Agreement acknowledge that the performance by the Master Servicer and the Trust
Administrator of its duties under this Section 4.05(a)(iii) 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 4.05(a)(iii). The Depositor acknowledges that the performance
by the Master Servicer and the Trust Administrator of its duties under this
Section 4.05(a)(iii) related to the timely preparation, execution and filing
of
Form 10-D is also contingent upon each Servicer, the Custodians and any
Sub-Servicer or Subcontractor strictly observing deadlines no later than those
set forth in this paragraph that are applicable to the parties to this Agreement
in the delivery to the Trust Administrator of any necessary Form 8-K Disclosure
Information pursuant to the Custodial Agreement or any other applicable
agreement. Neither the Master Servicer nor the Trust Administrator shall have
any liability for any loss, expense, damage or claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
8-K, where such failure results from the Trust Administrator’s inability or
failure to receive, on a timely basis, any information from any other party
hereto or any Custodian, Sub-Servicer or Subcontractor needed to prepare,
arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
(iv) (A)
On or
prior to 90 days after the end of each fiscal year of the Trust or such earlier
date as may be required by the Exchange Act (the “10-K Filing Deadline”) (it
being understood that the fiscal year for the Trust ends on December
31st
of each
year), commencing in March 2008, the Trust Administrator shall prepare and
file
on behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Trust Administrator within
the applicable time frames set forth in this Agreement and the Custodial
Agreement, (i) an annual compliance statement for each Servicer, the Master
Servicer, the Trust Administrator and any Sub-Servicer, Subcontractor or other
Person engaged by such parties or the Trustee (together with each Custodian,
each a “Reporting Servicer”), as described under Section 3.20 of this Agreement
and the Custodial Agreement, provided, however, that the Trust Administrator,
at
its discretion, may omit from the Form 10-K any annual compliance statement
that
is not required to be filed with such Form 10-K for each Reporting Servicer
pursuant to Regulation AB, (ii)(A) the annual reports on assessment of
compliance with Servicing Criteria for each Reporting Servicer, as described
under Section 3.21 of this Agreement and the Custodial Agreement, and (B) if
the
report on assessment of compliance with the Servicing Criteria identifies any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if each Reporting Servicer’s report on assessment of
compliance with Servicing Criteria is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included provided, however, that the Trust Administrator, at
its
discretion, may omit from the Form 10-K any assessment of compliance or
attestation report described in clause (iii) below that is not required to
be
filed with such Form 10-K pursuant to Regulation AB, (iii)(A) the registered
public accounting firm attestation report for each Reporting Servicer as
described under Section 3.21 of this Agreement and the Custodial Agreement,
and
(B) if any registered public accounting firm attestation report described under
Section 3.21 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such registered public
accounting firm attestation report is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification (“Xxxxxxxx-Xxxxx
Certification”) as described below. Any disclosure or information in addition to
(i) through (iv) above that is required to be included on Form 10-K (“Additional
Form 10-K Disclosure”) shall, be reported by the parties set forth on Exhibit T
to the Depositor and the Trust Administrator and directed and approved by the
Depositor pursuant to the following paragraph, and the Trust 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.
No
later
than March 15th
of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2008, (i) the parties set forth in Exhibit T shall be required
to
provide pursuant to Section 4.05(a)(v) below to the Depositor and to the Trust
Administrator (by email at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
and by
facsimile at 410-715-2380), to the extent known, in XXXXX-compatible format,
or
in such other format as otherwise agreed upon by the Trust Administrator and
such party, the form and substance of any Additional Form 10-K Disclosure,
if
applicable, together with an Additional Disclosure Notification and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The
Trust
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit T of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-K Disclosure information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Trust Administrator
in
connection with including any Additional Form 10-K Disclosure on Form 10-K
pursuant to this Section.
After
preparing the Form 10-K, the Trust Administrator shall forward, upon request,
electronically a copy of the Form 10-K to the Depositor for review. Within
three
Business Days after receipt of such copy, but no later than March 25th, the
Depositor shall notify the Trust Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K.
In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-K, the Trust Administrator shall be
entitled to assume that such Form 10-K is in final form and the Trust
Administrator may proceed with the execution and filing of the Form 10-K. A
senior officer of the Master Servicer in charge of the master servicing function
shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if a
previously filed Form 10-K needs to be amended, the Trust Administrator will
follow the procedures set forth in Section 4.05(a)(vi). Promptly (but no later
than 1 Business Day) after filing with the Commission, the Trust Administrator
will make available on its internet website a final executed copy of each Form
10-K filed by it. The parties to this Agreement acknowledge that the performance
by the Master Servicer and the Trust Administrator of its duties under Section
4.05(a)(iv) and Section 4.05(a) (v) related to the timely preparation, execution
and filing of Form 10-K is contingent upon such parties strictly observing
all
applicable deadlines in the performance of their duties under such Sections,
Section 3.20 and Section 3.21. The Depositor acknowledges that the performance
by the Master Servicer and the Trust Administrator of its duties under this
Section 4.05(a)(iv) related to the timely preparation, execution and filing
of
Form 10-K is also contingent upon each Servicer, the Custodians and any
Sub-Servicer or Subcontractor strictly observing deadlines no later than those
set forth in this paragraph that are applicable to the parties to this Agreement
in the delivery to the Trust Administrator of any necessary Additional Form
10-K
Disclosure, any annual statement of compliance and any assessment of compliance
and attestation pursuant to the related Custodial Agreement or any other
applicable agreement. Neither the Master Servicer nor the Trust Administrator
shall have any liability for any loss, expense, damage, claim arising out of
or
with respect to any failure to properly prepare, execute and/or timely file
such
Form 10-K, where such failure results from the Trust Administrator’s inability
or failure to receive, on a timely basis, any information from any other party
hereto or any Custodian, Sub-Servicer or Subcontractor needed to prepare,
arrange for execution or file such Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
Form
10-K
requires the registrant to indicate (by checking “yes” or “no”) that it (1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. The Depositor hereby represents to
the
Trust Administrator that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirements for the past 90 days. The Depositor shall notify the Trust
Administrator in writing, no later than the 15th
calendar
day of March in any year in which the Trust is subject to the reporting
requirements of the Exchange Act, if the answer to either question should be
“no.” The Trust Administrator shall be entitled to rely on such representations
in preparing, executing and/or filing any such Form 10-K.
Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx Certification”), exactly
as set forth in Exhibit N-1 attached hereto, required to be included therewith
pursuant to the Xxxxxxxx-Xxxxx Act. Each of the Servicers, the Master Servicer
and the Trust Administrator shall provide, and each such party and the Trustee
shall cause any Sub-servicer or Subcontractor engaged by it to provide, to
the
Person who signs the Xxxxxxxx-Xxxxx Certification (the “Certifying Person”), by
March 1 of each year in which the Trust is subject to the reporting requirements
of the Exchange Act, a certification (a “Back-Up Certification”), in the form
attached hereto as Exhibit N-2, 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. A senior officer of the Master
Servicer in charge of the master servicing function shall serve as the
Certifying Person on behalf of the Trust. Such officer of the Certifying Person
can be contacted by e-mail at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by
facsimile at 000-000-0000. In the event that any such party or any Sub-Servicer
or Subcontractor engaged by such party is terminated or resigns pursuant to
the
terms of this Agreement, or any other applicable agreement, as the case may
be,
such party shall provide a Back-Up Certification to the Certifying Person
pursuant to this Section 4.05(a)(iv) with respect to the period of time it
was
subject to this Agreement or any other applicable agreement, as the case may
be.
Notwithstanding the foregoing, (i) the Master Servicer and the Trust
Administrator shall not be required to deliver a Back-Up Certification to each
other if both are the same Person and the Master Servicer is the Certifying
Person and (ii) the Master Servicer shall not be obligated to sign the
Xxxxxxxx-Xxxxx Certification in the event that it does not receive any Back-Up
Certification required to be furnished to it pursuant to this section or any
Servicing Agreement.
(v) With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust Fund, the Trust Administrator’s obligation to
include such Additional Information in the applicable Exchange Act report is
subject to receipt from the entity that is indicated in Exhibit T as the
responsible party for providing that information, if other than the Trust
Administrator, as and when required as described in Section 4.05(a)(ii) through
(iv) above. Each of the Master Servicer, the Servicers, the Trust Administrator
and Depositor hereby agree to notify and to provide, to the extent known, to
the
Trust Administrator and the Depositor, all Additional Disclosure relating to
the
Trust Fund, with respect to which such party is the responsible party for
providing that information, as indicated in Exhibit P hereof. The Swap Provider
will be obligated pursuant to the Swap Agreement to provide to the Trust
Administrator any information that may be required to be included in any Form
10-D, Form 8-K or Form 10-K. Each of the Servicers shall be responsible for
determining the pool concentration applicable to any Sub-Servicer or originator
at any time, for purposes of disclosure as required by Items 1108 and 1110
of
Regulation AB.
(vi) On
or
prior to January 30 of the first year in which the Trust Administrator is able
to do so under applicable law, the Trust Administrator shall prepare and file
a
Form 15 Suspension Notification relating to the automatic suspension of
reporting in respect of the Trust under the Exchange Act.
In
the
event that the Trust Administrator is unable to timely file with the Commission
all or any required portion of any Form 8-K, Form 10-D or Form 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or was delivered to it after the delivery deadlines set
forth in this Agreement or for any other reason, the Trust Administrator will
promptly notify electronically the Depositor. In the case of Form 10-D and
Form
10-K, the parties to this Agreement will cooperate to prepare and file a Form
12b-25 and a Form 10-D/A and Form 10-K/A as applicable, pursuant to Rule 12b-25
of the Exchange Act. In the case of Form 8-K, the Trust Administrator will,
upon
receipt of all required Form 8-K Disclosure Information and upon the approval
and direction of the Depositor, include such disclosure information on the
next
succeeding Form 10-D. In the event that any previously filed Form 8-K, Form
10-D
or Form 10-K needs to be amended, in connection with any Additional Form 10-D
Disclosure (other than, in the case of Form 10-D, for the purpose of restating
any Monthly Statement), Additional Form 10-K Disclosure or Form 8-K Disclosure
Information, the Trust Administrator will electronically notify the Depositor
and such other parties to the transaction as are affected by such amendment,
and
such parties will cooperate to prepare any necessary Form 8-K/A, Form 10-D/A
or
Form 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K or Form
10-D
shall be signed by a duly authorized representative or senior officer in charge
of master servicing, as applicable, of the Master Servicer. The parties to
this
Agreement acknowledge that the performance by the Master Servicer and the Trust
Administrator of its duties under this Section 4.05(a)(vi) related to the timely
preparation, execution and filing of Form 15, a Form 12b-25 or any amendment
to
Form 8-K, Form 10-D or Form 10-K is contingent upon each such party performing
its duties under this Section. Neither the Master Servicer nor the Trust
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file any such Form 15, Form 12b-25 or any amendments to Form
8-K,
Form 10-D or Form 10-K, where such failure results from the Trust
Administrator’s inability or failure to receive, on a timely basis, any
information from any other party hereto or any custodian, sub-servicer or
subcontractor needed to prepare, arrange for execution or file such Form 15,
Form 12b-25 or any amendments to Form 8-K, Form 10-D or Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
The
Depositor agrees to promptly furnish to the Trust Administrator, from time
to
time upon request, such further information, reports and financial statements
within its control related to this Agreement and the Mortgage Loans as the
Trust
Administrator reasonably deems appropriate to prepare and file all necessary
reports with the Commission. The Trust Administrator shall have no
responsibility to file any items other than those specified in this Section
4.05; provided, however, the Trust Administrator will cooperate with the
Depositor in connection with any additional filings with respect to the Trust
Fund as the Depositor deems necessary under the Exchange Act. Fees and expenses
incurred by the Trust Administrator in connection with this Section 4.05 shall
not be reimbursable from the Trust Fund.
(b) (A)
The
Trust Administrator shall indemnify and hold harmless the Depositor and its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
(i) a
breach of the Trust Administrator’s obligations under this Section 4.05 or the
Trust Administrator’s negligence, bad faith or willful misconduct in connection
therewith or (ii) any material misstatement or omission in the Annual Statement
of Compliance and the Assessment of Compliance delivered by the Trust
Administrator pursuant to Section 3.20 and Section 3.21.
(B) The
Depositor shall indemnify and hold harmless the Trust Administrator and the
Master Servicer and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the obligations of the Depositor under
this Section 4.05 or the Depositor’s negligence, bad faith or willful misconduct
in connection therewith.
(C) The
Master Servicer shall indemnify and hold harmless the Trust Administrator and
the Depositor and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (i) a breach of the obligations of the Master
Servicer under this Section 4.05 or the Master Servicer’s negligence, bad faith
or willful misconduct in connection therewith or (ii) any material misstatement
or omission in the Statement as to Compliance delivered by the Master Servicer
pursuant to Section 3.20 or the Assessment of Compliance delivered by the Master
Servicer pursuant to Section 3.21.
(D) Ocwen
shall indemnify and hold harmless the Master Servicer, Trust Administrator
and
the Depositor and their respective officers, directors and affiliates from
and
against any actual losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses arising out of or based upon (i) a breach of the obligations of Ocwen
under Section 3.20, Section 3.21 or Section 4.05, including any failure by
Ocwen
(or any Sub-Servicer or any Subcontractor engaged by Ocwen), to provide any
Back-Up Certification, annual statement of compliance, annual assessment of
compliance with Servicing Criteria or attestation report, any information,
data
or materials required to be included in any Exchange Act report or any other
information or material when and as required under Sections 3.20, 3.21 or 4.05,
or Ocwen’s negligence, bad faith or willful misconduct in connection therewith
and (ii) any
material misstatement or omission contained in any information, disclosure,
report, certification, data, accountants’ letter or other material provided
under Sections 3.20, 3.21 and 4.05 to the Master Servicer or the Trust
Administrator by or on behalf of Ocwen
or
on
behalf of any Sub-Servicer or Subcontractor), including any material
misstatement or material omission in (i) any Back-Up Certification, annual
statement of compliance, annual assessment of compliance with Servicing Criteria
or attestation report delivered by Ocwen,
or by
any Sub-Servicer or Subcontractor engaged by it, pursuant to this Agreement,
or
(ii) any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or
Form 8-K Disclosure Information provided by Ocwen.
(E) The
Trustee (and in its capacity as a Custodian) shall indemnify and hold harmless
the Master Servicer, Trust Administrator and the Depositor and their respective
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
(i) a
breach of the obligations of the Trustee under Section 3.21 or Section 4.05,
including any failure by the Trustee, to provide any annual assessment of
compliance or attestation report, any information, data or materials required
to
be included in any Exchange Act report or any other information or material
when
and as required under Sections 3.21 or 4.05, or the Trustee’s negligence, bad
faith or willful misconduct in connection therewith and (ii) any
material misstatement or omission contained in any information, disclosure,
report, certification, data, accountants’ letter or other material provided
under Sections 3.20, 3.21 and 4.05 to the Master Servicer or the Trust
Administrator by or on behalf of the Trustee,
including any material misstatement or material omission in (i) any annual
assessment of compliance or attestation report, or (ii) any Additional Form
10-D
Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information
provided by the Trustee.
(F) If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, Ocwen, the Master Servicer, the Trustee or the Trust
Administrator, as applicable, then the defaulting party, in connection with
a
breach of its respective obligations under this Section 4.05 or its respective
negligence, bad faith or willful misconduct in connection therewith, agrees
that
it shall contribute to the amount paid or payable by the other parties as a
result of the losses, claims, damages or liabilities of the other party in
such
proportion as is appropriate to reflect the relative fault and the relative
benefit of the respective parties. This indemnification shall survive the
termination of this Agreement or the termination of any party to this
Agreement.
(c) Nothing
shall be construed from the foregoing subsections (a) and (b) to require the
Trust Administrator or any officer, director or Affiliate thereof to sign any
Form 10-K or any certification contained therein. Furthermore, the inability
of
the Trust Administrator to file a Form 10-K as a result of the lack of required
information as set forth in Section 4.05(a) or required signatures on such
Form
10-K or any certification contained therein shall not be regarded as a breach
by
the Trust Administrator of any obligation under this Agreement.
(d) Notwithstanding
the provisions of Section 11.01, this Section 4.05 may be amended without the
consent of the Certificateholders.
(e) Each
of
the parties agrees to provide to the Master Servicer and the Trust Administrator
such additional information related to such party as the Master Servicer and
the
Trust Administrator may reasonably request, including evidence of the
authorization of the person signing any certificate or statement, financial
information and reports, and such other information related to such party or
its
performance hereunder.
Any
notice or notification required to be delivered by the Trust Administrator
or
Master Servicer to the Depositor pursuant to this 4.05, may be delivered via
facsimile to the legal department at (000) 000-0000, with a copy delivered
to
the operations group at facsimile (000) 000-0000.
| SECTION 4.06 |
[Reserved].
|
| SECTION 4.07 |
[Reserved].
|
| SECTION 4.08 |
Distributions
on the REMIC Regular Interests.
|
(a) On
each
Distribution Date, the Trust Administrator shall cause in the following order
of
priority, the following amounts which shall be deemed to be distributed by
REMIC
1 to REMIC 2 on account of the REMIC 1 Regular Interests or withdrawn from
the
Distribution Account and distributed to the holders of the Class R Certificates
(in respect of the Class R-1 Interest), as the case may be:
(i) to
Holders of each of REMIC 1 Regular Interest I and REMIC 1 Regular Interest
I-1-A
through I-51-B, on a pro
rata
basis,
in an amount equal to (A) Uncertificated Accrued Interest for such REMIC 1
Regular Interests for such Distribution Date, plus (B) any amounts payable
in
respect thereof remaining unpaid from previous Distribution Dates;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(A)
above, payments of principal shall be allocated as follows: first, to REMIC
1
Regular interests I-1-A through I-51-B starting with the lowest numerical
denomination until the Uncertificated Principal Balance of each such REMIC
1
Regular Interest is reduced to zero, provided that, for REMIC 1 Regular
Interests with the same numerical denomination, such payments of principal
shall
be allocated pro rata between such REMIC 1 Regular Interests, and second, to
the
extent of the Overcollateralization Release Amounts, to REMIC 1 Regular Interest
I-51-B until the Uncertificated Principal Balance of such REMIC 1 Regular
Interest is reduced to zero; and
(iii) to
the
Holders of REMIC 1 Regular Interest P, (A) on each Distribution Date, 100%
of
the amount paid in respect of Prepayment Charges and (B) on the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date thereafter
until $100 has been distributed pursuant to this clause.
(b) On
each
Distribution Date, the Trust Administrator shall cause in the following order
of
priority, the following amounts which shall be deemed to be distributed by
REMIC
2 to REMIC 3 on account of the REMIC 2 Regular Interests or withdrawn from
the
Distribution Account and distributed to the holders of the Class R Certificates
(in respect of the Class R-2 Interest), as the case may be:
(i) first,
to
the Holders of REMIC 2 Regular Interest LTIO, in an amount equal to (A)
Uncertificated Accrued Interest for such REMIC 2 Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates;
(ii) second,
to the extent of Available Funds, to Holders of REMIC 2 Regular Interest LTAA,
REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC 2 Regular Interest
LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC
2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8A, REMIC 2 Regular Interest LTM8B, REMIC 2 Regular Interest
LTM9, REMIC 2 Regular Interest LTM10, REMIC 2 Regular Interest LTZZ and REMIC
2
Regular Interest LTP, on a pro
rata
basis,
in an amount equal to (A) the Uncertificated Accrued Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates. Amounts payable as Uncertificated Accrued Interest
in respect of REMIC 2 Regular Interest LTZZ shall be reduced and deferred when
the REMIC 2 Overcollateralization Amount is less than the REMIC 2
Overcollateralization Target Amount, by the lesser of (x) the amount of such
difference and (y) the Maximum Uncertificated Accrued Interest Deferral Amount
and such amount will be payable to the Holders of REMIC 2 Regular Interest
LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC
2
Regular Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular
Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3,
REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular
Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8A,
REMIC 2 Regular Interest LTM8B, REMIC 2 Regular Interest LTM9 and REMIC 2
Regular Interest LTM10, in the same proportion as the Overcollateralization
Deficiency Amount is allocated to the Corresponding Certificates and the
Uncertificated Principal Balance of the REMIC 2 Regular Interest LTZZ shall
be
increased by such amount; and
(iii) third,
to
the Holders of REMIC 2 Regular Interests, in an amount equal to the remainder
of
the Available Funds for such Distribution Date after the distributions made
pursuant to clause (i) above, allocated as follows:
(a) 98.00%
of
such remainder to the Holders of REMIC 2 Regular Interest LTAA and REMIC 2
Regular Interest LTP, until the Uncertificated Principal Balance of such
Uncertificated REMIC 2 Regular Interest is reduced to zero; provided, however,
that REMIC 2 Regular Interest LTP shall not be reduced until the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date
thereafter, at which point such amount shall be distributed to REMIC 2 Regular
Interest LTP, until $100 has been distributed pursuant to this
clause;
(b) 2.00%
of
such remainder first, to the Holders of REMIC 2 Regular Interest LTIA1, REMIC
2
Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8A, REMIC 2 Regular
Interest LTM8B, REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest LTM10,
of and in the same proportion as principal payments are allocated to the
Corresponding Certificates, until the Uncertificated Principal Balances of
such
REMIC 2 Regular Interests are reduced to zero, and second, to the Holders of
REMIC 2 Regular Interest LTZZ, until the Uncertificated Principal Balance of
such REMIC 2 Regular Interest is reduced to zero; and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-2 Interest).
| SECTION 4.09 |
Allocation
of Realized Losses.
|
(a) All
Realized Losses on the Mortgage Loans allocated to any Regular Certificate
shall
be allocated by the Trust Administrator on each Distribution Date as follows:
first, to Net Monthly Excess Cashflow; second, to
Net
Swap
Payments received under the Interest Rate Swap Agreement; third, to amounts
received under the Interest Rate Cap Agreement; fourth, to the Class C
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; fifth, to the Class M-10 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; sixth, to the Class M-9 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero;
seventh, to the Class M-8 Certificates on a pro
rata
basis
based on the Certificate Principal Balance of each such class, until the
Certificate Principal Balances thereof have been reduced to zero; eighth, to
the
Class M-7 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; ninth, to the Class M-6 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; tenth, to the Class M-5
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; eleventh, to the Class M-4 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; twelfth, to the Class M-3
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; thirteenth, to the Class M-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero and fourteenth, to the Class
M-1 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero. All Realized Losses to be allocated to the Certificate
Principal Balances of all Classes on any Distribution Date shall be so allocated
after the actual distributions to be made on such date as provided above. All
references above to the Certificate Principal Balance of any Class of
Certificates shall be to the Certificate Principal Balance of such Class
immediately prior to the relevant Distribution Date, before reduction thereof
by
any Realized Losses, in each case to be allocated to such Class of Certificates,
on such Distribution Date.
Any
allocation of Realized Losses to a Mezzanine Certificate on any Distribution
Date shall be made by reducing the Certificate Principal Balance thereof by
the
amount so allocated; any allocation of Realized Losses to a Class C Certificates
shall be made first by reducing the amount otherwise payable in respect thereof
pursuant to Section 4.01(c)(v). No allocations of any Realized Losses shall
be
made to the Certificate Principal Balances of the Senior Certificates or the
Class P Certificates.
(b) With
respect to the REMIC 1 Regular Interests, all Realized Losses on the Mortgage
Loans shall be allocated by the Trust Administrator on each Distribution Date,
first to REMIC 1 Regular Interest I until the Uncertificated Principal Balance
has been reduced to zero, and second, to REMIC 1 Regular Interest I-1-A through
REMIC 1 Regular Interest I-51-B, starting with the lowest numerical denomination
until such REMIC 1 Regular Interest has been reduced to zero, provided that,
for
REMIC 1 Regular Interests with the same numerical denomination, such Realized
Losses shall be allocated pro
rata
between
such REMIC 1 Regular Interests.
(c) All
Realized Losses on the Mortgage Loans shall be deemed to have been allocated
in
the specified percentages, as follows: first, to Uncertificated Accrued Interest
payable to the REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTZZ
up to an aggregate amount equal to the REMIC 2 Interest Loss Allocation Amount,
98% and 2%, respectively; second, to the Uncertificated Principal Balances
of
REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTZZ up to an
aggregate amount equal to the REMIC 2 Principal Loss Allocation Amount, 98%
and
2%, respectively; third, to the Uncertificated Principal Balances of REMIC
2
Regular Interest LTAA, REMIC 2 Regular Interest LTM10 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM10 has been reduced to zero; fourth,
to
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC
2
Regular Interest LTM9 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM9 has been reduced to zero; fifth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM8B and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM8B has been
reduced to zero; sixth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM8A and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM8A has been reduced to zero; seventh,
to
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC
2
Regular Interest LTM7 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM7 has been reduced to zero; eighth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM6 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM6 has been
reduced to zero; ninth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM5 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM5 has been reduced to zero; tenth, to
the
Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2
Regular Interest LTM4 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM4 has been reduced to zero; eleventh, to the Uncertificated
Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest
LTM3 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until
the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM3 has been
reduced to zero; twelfth, to the Uncertificated Principal Balances of REMIC
2
Regular Interest LTAA, REMIC 2 Regular Interest LTM2 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM2 has been reduced to zero and
thirteenth, to the Uncertificated Principal Balances of REMIC 2 Regular Interest
LTAA, REMIC 2 Regular Interest LTM1 and REMIC 2 Regular Interest LTZZ, 98%,
1%
and 1%, respectively, until the Uncertificated Principal Balance of REMIC 2
Regular Interest LTM1 has been reduced to zero.
| SECTION 4.10 |
Swap
Account.
|
(a) On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), into which the Depositor shall deposit the Interest Rate Swap
Agreement. The Supplemental Interest Trust shall be maintained by the
Supplemental Interest Trust Trustee. No later than the Closing Date, the
Supplemental Interest Trust Trustee shall establish and maintain a separate,
segregated trust account to be held in the Supplemental Interest Trust, titled,
“Swap
Account, Xxxxx Fargo Bank, N.A., as Supplemental Interest Trust Trustee, in
trust for the registered Certificateholders of Soundview Home Loan Trust 2007-1,
Asset-Backed Certificates, Series 2007-1.”
Such
account shall be an Eligible Account and funds on deposit therein shall be
held
separate and apart from, and shall not be commingled with, any other moneys,
including, without limitation, other moneys of the Trust Administrator held
pursuant to this Agreement. Amounts therein shall be held
uninvested.
(b) Prior
to
each Distribution Date, prior to any distribution to any Certificate, the
Supplemental Interest Trust Trustee shall deposit into the Swap Account: (i)
the
amount of any Net Swap Payment or Swap Termination Payment (other than any
Swap
Termination Payment resulting from a Swap Provider Trigger Event) owed to the
Swap Provider (after taking into account any upfront payment received from
the
counterparty to a replacement interest rate swap agreement) from funds collected
and received with respect to the Mortgage Loans prior to the determination
of
Available Funds. For federal income tax purposes, any amounts paid to the Swap
Provider on each Distribution Date shall first be deemed paid to the Swap
Provider in respect of REMIC 6 Regular Interest SWAP IO to the extent of the
amount distributable on REMIC 6 Regular Interest SWAP IO on such Distribution
Date, and any remaining amount shall be deemed paid to the Swap Provider in
respect of a Class IO Distribution Amount (as defined below).
(c) 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 C Certificates unless and until
the date when either (a) there is more than one Class C Certificateholder or
(b)
any Class of Certificates in addition to the Class C Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust for
federal income tax purposes, in which case 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 treated as a partnership, provided,
that the Trust Administrator shall not be required to prepare and file
partnership tax returns in respect of such partnership unless it receives
additional reasonable compensation (not to exceed $10,000 per year) for the
preparation of such filings, written notification recognizing the creation
of a
partnership agreement or comparable documentation evidencing the partnership,
if
any. The Supplemental Interest Trust will be an “outside reserve fund” within
the meaning of Treasury Regulation Section 1.860G-2(h).
(d) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Supplemental Interest Trust Trustee, any obligation of the
Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement
shall
be deemed to be an obligation of the Supplemental Interest Trust.
(e) The
Trust
Administrator shall treat the Holders of Certificates (other than the Class
P,
Class C, Class R and Class R-X Certificates) as having entered into a notional
principal contract with respect to the Holders of the Class C Certificates.
Pursuant to each such notional principal contract, all Holders of Certificates
(other than the Class P, Class C, Class R and Class R-X Certificates) shall
be
treated as having agreed to pay, on each Distribution Date, to the Holder of
the
Class C Certificates an aggregate amount equal to the excess, if any, of (i)
the
amount payable on such Distribution Date on the REMIC 2 Regular Interest
corresponding to such Class of Certificates over (ii) the amount payable on
such
Class of Certificates on such Distribution Date (such excess, a “Class
IO
Distribution Amount”). A Class IO Distribution Amount payable from interest
collections shall be allocated pro
rata
among
such Certificates based on the excess of (a) the amount of interest otherwise
payable to such Certificates over (ii) the amount of interest payable to such
Certificates at a per annum rate equal to the Net WAC Rate, and a Class IO
Distribution Amount 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 Holder of the Class C Certificates shall be treated as having
agreed to pay Net WAC Rate Carryover Amounts to the Holders of the Certificates
(other than the Class C, Class P, Class R and Class R-X Certificates) in
accordance with the terms of this Agreement. Any payments to the Certificates
from amounts deemed received in respect of this notional principal contract
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
(other than the Class C, Class P, Class R and Class R-X Certificates) of a
Class
IO Distribution Amount shall be treated for tax purposes as having been received
by the Holders of such Certificates in respect of their interests in REMIC
4 and
as having been paid by such Holders pursuant to the notional principal contract.
Thus, each Certificate (other than the Class P and Class R Certificates) shall
be treated as representing not only ownership of Regular Interests in REMIC
2,
but also ownership of an interest in, and obligations with respect to, a
notional principal contract.
(f) The
Trust
Administrator shall, at the direction of the Depositor, enforce all of its
rights and exercise any remedies under the Swap Agreement. In the event the
Swap
Agreement is terminated as a result of the designation by either party thereto
of an Early Termination Date (as defined therein), the Trust Administrator
shall, at the direction of the Depositor, appoint a replacement counterparty
to
enter into a replacement swap agreement. The Trust Administrator shall have
no
responsibility with regard to the selection of a replacement swap provider
or
the negotiation of a replacement swap agreement. Any Swap Termination Payment
received by the Trust Administrator shall be deposited in the Swap Account
and
shall be used to make any upfront payment required under a replacement swap
agreement and any upfront payment received from the counterparty to a
replacement swap agreement shall be used to pay any Swap Termination Payment
owed to the Swap Provider.
(g) For
federal tax return and information reporting, the right of the Holders of the
Floating Rate Certificates to receive payments from the Supplemental Interest
Trust in respect of any Net WAC Cap Carry Forward Amounts may have more than
a
de
minimis
value.
| SECTION 4.11 |
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
For
federal income tax purposes, each holder of a Floating Rate Certificate is
deemed to own an undivided beneficial ownership interest in a REMIC regular
interest and the right to receive payments from either the Net WAC Rate
Carryover Reserve Account or the Swap Account in respect of the Net WAC Rate
Carryover Amount or the obligation to make payments to the Swap Account. For
federal income tax purposes, the Trust Administrator will account for payments
to each Floating Rate Certificates as follows: each Floating Rate Certificate
will be treated as receiving their entire payment from REMIC 3 (regardless
of
any Swap Termination Payment or obligation under the Interest Rate Swap
Agreement) and subsequently paying their portion of any Swap Termination Payment
in respect of each such Class’ obligation under the Interest Rate Swap
Agreement. In the event that any such Class is resecuritized in a REMIC, the
obligation under the Interest Rate Swap Agreement to pay any such Swap
Termination Payment (or any shortfall in Swap Provider Fee), will be made by
one
or more of the REMIC Regular Interests issued by the resecuritization REMIC
subsequent to such REMIC Regular Interest receiving its full payment from any
such Floating Rate Certificate.
The
REMIC
regular interest corresponding to a Floating Rate Certificate will be entitled
to receive interest and principal payments at the times and in the amounts
equal
to those made on the certificate to which it corresponds, except that (i) the
maximum interest rate of that REMIC regular interest will equal the Net WAC
Rate
computed for this purpose by limiting the Base Calculation Amount of the
Interest Rate Swap Agreement to the aggregate Stated Principal Balance of the
Mortgage Loans and (ii) any Swap Termination Payment will be treated as being
payable solely from Net Monthly Excess Cashflow. As a result of the foregoing,
the amount of distributions and taxable income on the REMIC regular interest
corresponding to a Floating Rate Certificate may exceed the actual amount of
distributions on the Floating Rate Certificate.
| SECTION 4.12 |
Cap
Account.
|
(a) No
later
than the Closing Date, the Trust Administrator shall establish and maintain
with
itself, a separate, segregated trust account titled, “Cap Account, Xxxxx Fargo
Bank, N.A., as Cap Trustee, in trust for the registered Certificateholders
of
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1.”
Such account shall be an Eligible Account and amounts therein shall be held
uninvested.
(b) On
each
Distribution Date, pursuant to the Cap Allocation Agreement, the Cap Trustee,
prior to any distribution to any Certificate, shall deposit into the Cap Account
amounts received pursuant to the Interest Rate Cap Agreement for distribution
in
accordance with Section 4.01(f) above.
(c) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Cap Account be disregarded as an entity
separate from the Holder of the Class C Certificates unless and until the date
when either (a) there is more than one Class C Certificateholder or (b) any
Class of Certificates in addition to the Class C Certificates is recharacterized
as an equity interest in the Cap Account for federal income tax purposes, in
which case it is the intention of the parties hereto that, for federal and
state
income and state and local franchise tax purposes, the Cap Account be treated
as
a partnership. The Cap Account will be an “outside reserve fund” within the
meaning of Treasury Regulation Section 1.860G-2(h). Upon the termination of
the
Trust Fund, or the payment in full of the Senior Certificates and the Mezzanine
Certificates, all amounts remaining on deposit in the Cap Account shall be
released by the Trust Fund and distributed to the Class C Certificateholders
or
their designees. The Cap Account shall be part of the Trust Fund but not part
of
any Trust REMIC and any payments to the Holders of the Floating Rate
Certificates of Net WAC Rate Carryover Amounts will not be payments with respect
to a “regular interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
(d) By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Trust Administrator, and the Trust Administrator is hereby directed,
to deposit into the Cap Account the amounts described above on each Distribution
Date.
For
federal income tax purposes, the right of the Floating Rate Certificates to
receive payments from the Cap Account may have more than a de
minimis
value.
| SECTION 4.13 |
Net
WAC Rate Carryover Reserve Account.
|
No
later
than the Closing Date, the Trust Administrator shall establish and maintain
with
itself a separate, segregated trust account titled, “Net WAC Rate Carryover
Reserve Account, Deutsche Bank National Trust Company, as Trustee, in trust
for
registered Holders of Soundview Mortgage Loan Trust 2007-1, Asset-Backed
Certificates, Series 2007-1.” All amounts deposited in the Net WAC Rate
Carryover Reserve Account shall be distributed to the Holders of the Floating
Rate Certificates in the manner set forth in Section 4.01(d).
On
each
Distribution Date as to which there is a Net WAC Rate Carryover Amount payable
to the Floating Rate Certificates (after taking into account the remaining
Initial Net WAC Rate Carryover Reserve Account Deposit), the Trust Administrator
has been directed by the Class C Certificateholders to, and therefore will,
deposit into the Net WAC Rate Carryover Reserve Account the amounts described
in
Section 4.01(c)(v), rather than distributing such amounts to the Class C
Certificateholders. In addition, any payments received by the Trust
Administrator under the Basis Risk Cap Agreement on each Distribution Date
will
be deposited into the Net WAC Rate Carryover Reserve Account. On each such
Distribution Date, the Trust Administrator shall hold all such amounts for
the
benefit of the Holders of the Floating Rate Certificates, and will distribute
such amounts to the Holders of the Floating Rate Certificates in the amounts
and
priorities set forth in Section 4.01(d).
On
each
Distribution Date, any amounts remaining in the Net WAC Rate Carryover Reserve
Account (representing payments received by the Trust Administrator under the
Basis Risk Cap Agreement) after the payment of any Net WAC Rate Carryover
Amounts on the Floating Rate Certificates for such Distribution Date, shall
be
payable to the Trust Administrator as additional compensation. For so long
as
any Floating Rate Certificates are beneficially owned by the Depositor or any
of
its Affiliates, the Depositor shall refund or cause such Affiliate to refund
any
amounts paid to it under the Basis Risk Cap Agreement to the Trust Administrator
who shall, pursuant to the terms of the Basis Risk Cap Agreement, return such
amount to the counterparty thereunder.
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Net WAC Rate Carryover Reserve Account be
disregarded as an entity separate from the Holder of the Class C Certificates
unless and until the date when either (a) there is more than one Class C
Certificateholder or (b) any Class of Certificates in addition to the Class
C
Certificates is recharacterized as an equity interest in the Net WAC Rate
Carryover Reserve Account for federal income tax purposes, in which case it
is
the intention of the parties hereto that, for federal and state income and
state
and local franchise tax purposes, the Net WAC Rate Carryover Reserve Account
be
treated as a partnership provided, that the Trust Administrator shall not be
required to prepare and file partnership tax returns in respect of such
partnership unless it receives additional reasonable compensation (not to exceed
$10,000 per year) for the preparation of such filings, written notification
recognizing the creation of a partnership agreement or comparable documentation
evidencing the partnership, if any. All amounts deposited into the Net WAC
Rate
Carryover Reserve Account (other than amounts received under the Basis Risk
Cap
Agreement) shall be treated as amounts distributed by REMIC 4 to the Holder
of
the Class C Interest and by REMIC 4 to the Holder of the Class C Certificates.
The Net WAC Rate Carryover Reserve Account will be an “outside reserve fund”
within the meaning of Treasury Regulation Section 1.860G-2(h). Upon the
termination of the Trust, or the payment in full of the Floating Rate
Certificates, all amounts remaining on deposit in the Net WAC Rate Carryover
Reserve Account will be released by the Trust and distributed to the Holders
of
the Class C Certificates or their designee. The Net WAC Rate Carryover Reserve
Account will be part of the Trust but not part of any REMIC and any payments
to
the Holders of the Floating Rate Certificates of Net WAC Rate Carryover Amounts
will not be payments with respect to a “regular interest” in a REMIC within the
meaning of Code Section 860(G)(a)(1).
By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Trust Administrator, and the Trust Administrator hereby is directed,
to deposit into the Net WAC Rate Carryover Reserve Account the amounts described
above on each Distribution Date as to which there is any Net WAC Rate Carryover
Amount rather than distributing such amounts to the Class C Certificateholders.
By accepting a Class C Certificate, each Class C Certificateholder further
agrees that such direction is given for good and valuable consideration, the
receipt and sufficiency of which is acknowledged by such
acceptance.
Amounts
on deposit in the Net WAC Rate Carryover Reserve Account shall remain
uninvested.
For
federal tax return and information reporting, the right of the Holders of the
Floating Rate Certificates to receive payments from the Net WAC Rate Carryover
Reserve Account in respect of any Net WAC Cap Carry Forward Amounts may have
more than a de
minimis
value.
| SECTION 4.14 |
Collateral
Accounts
|
(a) The
Trust
Administrator is hereby directed to perform the obligations of the Custodian
as
defined under the Basis Risk Cap Credit Support Annex (the “Basis Risk Cap
Custodian”). On or before the Closing Date, the Basis Risk Cap Custodian shall
establish a Basis Risk Cap Collateral Account. The Basis Risk Cap Collateral
Account shall be held in the name of the Basis Risk Cap Custodian in trust
for
the benefit of the Certificateholders. The Basis Risk Cap Collateral Account
must be an Eligible Account and shall be titled “Basis Risk Cap Collateral
Account, Xxxxx Fargo Bank, N.A., as Basis Risk Cap Custodian for registered
Certificateholders of Soundview Home Loan Trust 2007-1, Asset-Backed
Certificates, Series 2007-1.”
The
Basis
Risk Cap Custodian shall credit to Basis Risk Cap Collateral Account all
collateral (whether in the form of cash or securities) posted by the Basis
Risk
Cap Provider to secure the obligations of the Basis Risk Cap Provider in
accordance with the terms of the Basis Risk Cap Agreement. Except for investment
earnings, the Basis Risk Cap Provider shall not have any legal, equitable or
beneficial interest in the Basis Risk Cap Collateral Account other than in
accordance with this Agreement, the Basis Risk Cap Agreement and applicable
law.
The Basis Risk Cap Custodian shall maintain and apply all collateral and
earnings thereon on deposit in the Basis Risk Cap Collateral Account in
accordance with Basis Risk Cap Credit Support Annex.
Cash
collateral posted by the Basis Risk Cap Provider in accordance with the Basis
Risk Cap Credit Support Annex shall be invested at the direction of the Basis
Risk Cap Provider in Permitted Investments in accordance with the requirements
of the Basis Risk Cap Credit Support Annex. All amounts earned on amounts on
deposit in the Basis Risk Cap Collateral Account (whether cash collateral or
securities) shall be for the account of and taxable to the Basis Risk Cap
Provider. If no investment direction is provided, such amounts shall remain
uninvested.
Upon
the
occurrence of an Event of Default or Specified Condition (each as defined in
the
Basis Risk Cap Agreement), with respect to the Basis Risk Cap Provider or upon
occurrence or designation of an Early Termination Date (as defined in the Basis
Risk Cap Agreement) as a result of any such Event of Default or Specified
Condition with respect to the Basis Risk Cap Provider, and, in either such
case,
unless the Basis Risk Cap Provider has paid in full all of its Obligations
(as
defined in the Basis Risk Cap Credit Support Annex) that are then due, then
any
collateral posted by the Basis Risk Cap Provider in accordance with the Basis
Risk Cap Credit Support Annex shall be applied to the payment of any Obligations
due to Party B (as defined in the Basis Risk Cap Agreement) in accordance with
the Basis Risk Cap Credit Support Annex. Any excess amounts held in such Basis
Risk Cap Collateral Account after payment of all amounts owing to Party B under
the Basis Risk Cap Agreement shall be withdrawn from the Basis Risk Cap
Collateral Account and paid to the Basis Risk Cap Provider in accordance with
the Basis Risk Cap Credit Support Annex.
(b) The
Trust
Administrator (in its capacity as Cap Trustee) is hereby directed to perform
the
obligations of the Custodian as defined under the Interest Rate Cap Credit
Support Annex (the “Interest Rate Cap Custodian”). On or before the Closing
Date, the Interest Rate Cap Custodian shall establish a Interest Rate Cap
Collateral Account. The Interest Rate Cap Collateral Account shall be held
in
the name of the Interest Rate Cap Custodian in trust for the benefit of the
Certificateholders. The Interest Rate Cap Collateral Account must be an Eligible
Account and shall be titled “Interest Rate Cap Collateral Account, Xxxxx Fargo
Bank, N.A., as Interest Rate Cap Custodian for registered Certificateholders
of
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series
2007-1.”
The
Interest Rate Cap Custodian shall credit to Interest Rate Cap Collateral Account
all collateral (whether in the form of cash or securities) posted by the
Interest Rate Cap Provider to secure the obligations of the Interest Rate Cap
Provider in accordance with the terms of the Interest Rate Cap Agreement. Except
for investment earnings, the Interest Rate Cap Provider shall not have any
legal, equitable or beneficial interest in the Interest Rate Cap Collateral
Account other than in accordance with this Agreement, the Interest Rate Cap
Agreement and applicable law. The Interest Rate Cap Custodian shall maintain
and
apply all collateral and earnings thereon on deposit in the Interest Rate Cap
Collateral Account in accordance with Interest Rate Cap Credit Support
Annex.
Cash
collateral posted by the Interest Rate Cap Provider in accordance with the
Interest Rate Cap Credit Support Annex shall be invested at the direction of
the
Interest Rate Cap Provider in Permitted Investments in accordance with the
requirements of the Interest Rate Cap Credit Support Annex. All amounts earned
on amounts on deposit in the Interest Rate Cap Collateral Account (whether
cash
collateral or securities) shall be for the account of and taxable to the
Interest Rate Cap Provider. If
no
investment direction is provided, such amounts shall remain
uninvested.
Upon
the
occurrence of an Event of Default or Specified Condition (each as defined in
the
Interest Rate Cap Agreement), with respect to the Interest Rate Cap Provider
or
upon occurrence or designation of an Early Termination Date (as defined in
the
Interest Rate Cap Agreement) as a result of any such Event of Default or
Specified Condition with respect to the Interest Rate Cap Provider, and, in
either such case, unless the Interest Rate Cap Provider has paid in full all
of
its Obligations (as defined in the Interest Rate Cap Credit Support Annex)
that
are then due, then any collateral posted by the Interest Rate Cap Provider
in
accordance with the Interest Rate Cap Credit Support Annex shall be applied
to
the payment of any Obligations due to Party B (as defined in the Interest Rate
Cap Agreement) in accordance with the Interest Rate Cap Credit Support Annex.
Any excess amounts held in such Interest Rate Cap Collateral Account after
payment of all amounts owing to Party B under the Interest Rate Cap Agreement
shall be withdrawn from the Interest Rate Cap Collateral Account and paid to
the
Interest Rate Cap Provider in accordance with the Interest Rate Cap Credit
Support Annex.
(c) The
Trust
Administrator (in its capacity as Supplemental Interest Trust Trustee) is hereby
directed to perform the obligations of the Custodian as defined under the Swap
Credit Support Annex (the “Swap Custodian”). On or before the Closing Date, the
Swap Custodian shall establish a Swap Collateral Account. The Swap Collateral
Account shall be held in the name of the Swap Custodian in trust for the benefit
of the Certificateholders. The Swap Collateral Account must be an Eligible
Account and shall be titled “Swap Collateral Account, Xxxxx Fargo Bank, N.A., as
Swap Custodian for registered Certificateholders of Soundview Home Loan Trust
2007-1, Asset-Backed Certificates, Series 2007-1.”
The
Swap
Custodian shall credit to Swap Collateral Account all collateral (whether in
the
form of cash or securities) posted by the Swap Provider to secure the
obligations of the Swap Provider in accordance with the terms of the Interest
Rate Swap Agreement. Except for investment earnings, the Swap Provider shall
not
have any legal, equitable or beneficial interest in the Swap Collateral Account
other than in accordance with this Agreement, the Interest Rate Swap Agreement
and applicable law. The Swap Custodian shall maintain and apply all collateral
and earnings thereon on deposit in the Swap Collateral Account in accordance
with Swap Credit Support Annex.
Cash
collateral posted by the Swap Provider in accordance with the Swap Credit
Support Annex shall be invested at the direction of the Swap Provider in
Permitted Investments in accordance with the requirements of the Swap Credit
Support Annex. All amounts earned on amounts on deposit in the Swap Collateral
Account (whether cash collateral or securities) shall be for the account of
and
taxable to the Swap Provider. If no investment direction is provided, such
amounts shall remain uninvested.
Upon
the
occurrence of an Event of Default or Specified Condition (each as defined in
the
Interest Rate Swap Agreement), a with respect to the Interest Rate Swap Provider
or upon occurrence or designation of an Early Termination Date (as defined
in
the Interest Rate Swap Agreement) as a result of any such Event of Default
or
Specified Condition with respect to the Interest Rate Swap Provider, and, in
either such case, unless the Interest Rate Swap Provider has paid in full all
of
its Obligations (as defined in the Interest Rate Swap Credit Support Annex)
that
are then due, then any collateral posted by the Interest Rate Swap Provider
in
accordance with the Interest Rate Swap Credit Support Annex shall be applied
to
the payment of any Obligations due to Party B (as defined in the Interest Rate
Swap Agreement) in accordance with the Interest Rate Swap Credit Support Annex.
Any excess amounts held in such Swap Collateral Account after payment of all
amounts owing to Party B under the Interest Rate Swap Agreement shall be
withdrawn from the Swap Collateral Account and paid to the Swap Provider in
accordance with the Swap Credit Support Annex.
| SECTION 4.15 |
Rights
and Obligations Under the Basis Risk Cap Agreement, the Interest
Rate Cap
Agreement and the Interest Rate Swap
Agreement.
|
(a) In
the
event that the Basis Risk Cap Provider fails to perform any of its obligations
under the Basis Risk Cap Agreement (including, without limitation, its
obligation to make any payment or transfer collateral), or breaches any of
its
representations and warranties thereunder, or in the event that any Event of
Default, Termination Event, or Additional Termination Event (each as defined
in
the Basis Risk Cap Agreement) occurs with respect to the Basis Risk Cap
Agreement, the Trust Administrator shall, promptly following actual notice
of
such failure, breach or event, notify the Depositor and send any notices and
make any demands, on behalf of the Trust, required to enforce the rights of
the
Trust under the Basis Risk Cap Agreement.
In
the
event that the Basis Risk Cap Provider’s obligations are guaranteed by a third
party under a guaranty relating to the Basis Risk Cap Agreement (such guaranty
the “Guaranty” and such third party the “Guarantor”), then to the extent that
the Basis Risk Cap Provider fails to make any payment by the close of business
on the day it is required to make payment under the terms of the Basis Risk
Cap
Agreement, the Trust Administrator shall, promptly following actual notice
of
the Basis Risk Cap Provider’s failure to pay, demand that the Guarantor make any
and all payments then required to be made by the Guarantor pursuant to such
Guaranty; provided, that the Trust Administrator shall in no event be liable
for
any failure or delay in the performance by the Basis Risk Cap Provider or any
Guarantor of its obligations hereunder or pursuant to the Basis Risk Cap
Agreement and the Guaranty, nor for any special, indirect or consequential
loss
or damage of any kind whatsoever (including but not limited to lost profits)
in
connection therewith.
Upon
an
early termination of the Basis Risk Cap Agreement other than in connection
with
the optional termination of the Trust, the Trust Administrator, at the direction
of the Depositor, will use reasonable efforts to appoint a successor basis
risk
cap provider to enter into a new basis risk cap agreement on terms substantially
similar to the Basis Risk Cap Agreement, with a successor basis risk cap
provider meeting all applicable eligibility requirements. If the Trust
Administrator receives a termination payment from the Basis Risk Cap Provider
in
connection with such early termination, the Trust Administrator (will apply
such
termination payment to any upfront payment required to appoint the successor
basis risk cap provider. If the Trust Administrator is required to pay a
termination payment to the Basis Risk Cap Provider in connection with such
early
termination, the Trust Administrator will apply any upfront payment received
from the successor basis risk cap provider to pay such termination
payment.
If
the
Trust Administrator is unable to appoint a successor basis risk cap provider
within 30 days of the early termination, then the Trust Administrator will
deposit any termination payment received from the original Basis Risk Cap
Provider into a separate, non-interest bearing reserve account and will, on
each
subsequent Distribution Date, withdraw from the amount then remaining on deposit
in such reserve account, an amount equal to the payment, if any, that would
have
been paid to the Trust Administrator by the original Basis Risk Cap Provider
calculated in accordance with the terms of the original Basis Risk Cap
Agreement, and distribute such amount in accordance with the terms of Section
4.01(d).
Upon
an
early termination of the Basis Risk Cap Agreement in connection with the
optional termination of the Trust, if the Trust Administrator receives a
termination payment from the Basis Risk Cap Provider, such termination payment
will be distributed in accordance with Section 4.01(d).
(b) In
the
event that the Interest Rate Cap Provider fails to perform any of its
obligations under the Interest Rate Cap Agreement (including, without
limitation, its obligation to make any payment or transfer collateral), or
breaches any of its representations and warranties thereunder, or in the event
that any Event of Default, Termination Event, or Additional Termination Event
(each as defined in the Interest Rate Cap Agreement) occurs with respect to
the
Interest Rate Cap Agreement, the Trust Administrator (in its capacity as Cap
Trustee) shall, promptly following actual notice of such failure, breach or
event, notify the Depositor and send any notices and make any demands, on behalf
of the Cap Trust, required to enforce the rights of the Cap Trust under the
Interest Rate Cap Agreement.
In
the
event that the Interest Rate Cap Provider’s obligations are guaranteed by a
third party under a guaranty relating to the Interest Rate Cap Agreement (such
guaranty the “Guaranty” and such third party the “Guarantor”), then to the
extent that the Interest Rate Cap Provider fails to make any payment by the
close of business on the day it is required to make payment under the terms
of
the Interest Rate Cap Agreement, the Trust Administrator (in its capacity as
Cap
Trustee) shall, promptly following actual notice of the Interest Rate Cap
Provider’s failure to pay, demand that the Guarantor make any and all payments
then required to be made by the Guarantor pursuant to such Guaranty; provided,
that the Trust Administrator (in its capacity as Cap Trustee) shall in no event
be liable for any failure or delay in the performance by the Interest Rate
Cap
Provider or any Guarantor of its obligations hereunder or pursuant to the
Interest Rate Cap Agreement and the Guaranty, nor for any special, indirect
or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits) in connection therewith.
Upon
an
early termination of the Interest Rate Cap Agreement other than in connection
with the optional termination of the Trust, the Trust Administrator (in its
capacity as Cap Trustee), at the direction of the Depositor, will use reasonable
efforts to appoint a successor interest rate cap provider to enter into a new
interest rate cap agreement on terms substantially similar to the Interest
Rate
Cap Agreement, with a successor interest rate cap provider meeting all
applicable eligibility requirements. If the Trust Administrator (in its capacity
as Cap Trustee) receives a termination payment from the Interest Rate Cap
Provider in connection with such early termination, the Trust Administrator
(in
its capacity as Cap Trustee) will apply such termination payment to any upfront
payment required to appoint the successor interest rate cap provider. If the
Trust Administrator (in its capacity as Cap Trustee) is required to pay a
termination payment to the Interest Rate Cap Provider in connection with such
early termination, the Trust Administrator (in its capacity as Cap Trustee)
will
apply any upfront payment received from the successor interest rate cap provider
to pay such termination payment.
If
the
Trust Administrator (in its capacity as Cap Trustee) is unable to appoint a
successor interest rate cap provider within 30 days of the early termination,
then the Trust Administrator (in its capacity as Cap Trustee) will deposit
any
termination payment received from the original Interest Rate Cap Provider into
a
separate, non-interest bearing reserve account and will, on each subsequent
Distribution Date, withdraw from the amount then remaining on deposit in such
reserve account an amount equal to the payment, if any, that would have been
paid to the Trust Administrator (in its capacity as Cap Trustee) by the original
Interest Rate Cap Provider calculated in accordance with the terms of the
original Interest Rate Cap Agreement, and distribute such amount in accordance
with the terms of Section 4.01(g).
Upon
an
early termination of the Interest Rate Cap Agreement in connection with the
optional termination of the Trust, if the Trust Administrator (in its capacity
as Cap Trustee) receives a termination payment from the Interest Rate Cap
Provider, such termination payment will be distributed in accordance with
Section 4.01(g).
(c) In
the
event that the Swap Provider fails to perform any of its obligations under
the
Interest Rate Swap Agreement (including, without limitation, its obligation
to
make any payment or transfer collateral), or breaches any of its representations
and warranties thereunder, or in the event that any Event of Default,
Termination Event, or Additional Termination Event (each as defined in the
Interest Rate Swap Agreement) occurs with respect to the Interest Rate Swap
Agreement, the Trust Administrator (in its capacity as Supplemental Interest
Trust Trustee) shall, promptly following actual notice of such failure, breach
or event, notify the Depositor and send any notices and make any demands, on
behalf of the Supplemental Interest Trust, required to enforce the rights of
the
Supplemental Interest Trust under the Interest Rate Swap Agreement.
In
the
event that the Swap Provider’s obligations are guaranteed by a third party under
a guaranty relating to the Interest Rate Swap Agreement (such guaranty the
“Guaranty” and such third party the “Guarantor”), then to the extent that the
Swap Provider fails to make any payment by the close of business on the day
it
is required to make payment under the terms of the Interest Rate Swap Agreement,
the Trust Administrator (in its capacity as Supplemental Interest Trust Trustee)
shall, promptly following actual notice of the Swap Provider’s failure to pay,
demand that the Guarantor make any and all payments then required to be made
by
the Guarantor pursuant to such Guaranty; provided, that the Trust Administrator
(in its capacity as Supplemental Interest Trust Trustee) shall in no event
be
liable for any failure or delay in the performance by the Swap Provider or
any
Guarantor of its obligations hereunder or pursuant to the Interest Rate Swap
Agreement and the Guaranty, nor for any special, indirect or consequential
loss
or damage of any kind whatsoever (including but not limited to lost profits)
in
connection therewith.
Upon
an
early termination of the Interest Rate Swap Agreement other than in connection
with the optional termination of the Trust, the Trust Administrator (in its
capacity as Supplemental Interest Trust Trustee), at the direction of the
Depositor, will use reasonable efforts to appoint a successor swap provider
to
enter into a new interest rate swap agreement on terms substantially similar
to
the Interest Rate Swap Agreement, with a successor swap provider meeting all
applicable eligibility requirements. If the Trust Administrator (in its capacity
as Supplemental Interest Trust Trustee) receives a termination payment from
the
Swap Provider in connection with such early termination, the Trust Administrator
(in its capacity as Supplemental Interest Trust Trustee) will apply such
termination payment to any upfront payment required to appoint the successor
swap provider. If the Trust Administrator (in its capacity as Supplemental
Interest Trust Trustee) is required to pay a termination payment to the Swap
Provider in connection with such early termination, the Trust Administrator
(in
its capacity as Supplemental Interest Trust Trustee) will apply any upfront
payment received from the successor swap provider to pay such termination
payment.
If
the
Trust Administrator (in its capacity as Supplemental Interest Trust Trustee)
is
unable to appoint a successor swap provider within 30 days of the early
termination, then the Trust Administrator (in its capacity as Supplemental
Interest Trust Trustee) will deposit any termination payment received from
the
original Swap Provider into a separate, non-interest bearing reserve account
and
will, on each subsequent Distribution Date, withdraw from the amount then
remaining on deposit in such reserve account an amount equal to the Net Swap
Payment, if any, that would have been paid to the Trust Administrator (in its
capacity as Supplemental Interest Trust Trustee) by the original Swap Provider
calculated in accordance with the terms of the original Interest Rate Swap
Agreement, and distribute such amount in accordance with the terms of Section
4.01(f).
Upon
an
early termination of the Interest Rate Swap Agreement in connection with the
optional termination of the Trust, if the Trustee (in its capacity as
Supplemental Interest Trust Trustee) receives a termination payment from the
Swap Provider, such termination payment will be distributed in accordance with
Section 4.01(f).
ARTICLE
V
THE
CERTIFICATES
| SECTION 5.01 |
The
Certificates.
|
Each
of
the Floating Rate Certificates, the Class P Certificates, the Class C
Certificates, the Class FL Certificates, the Class X Certificates and the
Residual Certificates shall be substantially in the forms annexed hereto as
exhibits, and shall, on original issue, be executed, authenticated and delivered
by the Trust Administrator to or upon the order of the Depositor concurrently
with the sale and assignment to the Trust Administrator of the Trust Fund.
The
Floating Rate Certificates shall be initially evidenced by one or more
Certificates representing a Percentage Interest with a minimum dollar
denomination of $25,000 and integral dollar multiples of $1.00 in excess
thereof; provided, that the Floating Rate Certificates must be purchased in
minimum total investments of $100,000 per Class and that one Certificate of
each
such Class of Certificates may be in a different denomination so that the sum
of
the denominations of all outstanding Certificates of such Class shall equal
the
Certificate Principal Balance of such Class on the Closing Date. The Class
C
Certificates, the Class P Certificates, the Class FL Certificates, the Class
X
Certificates and the Residual Certificates are issuable in any Percentage
Interests; provided, however, that the sum of all such percentages for each
such
Class totals 100% and no more than ten Certificates of each Class may be issued
and outstanding at any one time.
The
Certificates shall be executed on behalf of the Trust Administrator by manual
or
facsimile signature on behalf of the Trust Administrator by a Responsible
Officer. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures were affixed, authorized to sign
on
behalf of the Trust Administrator shall bind the Trust, notwithstanding that
such individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at
the date of such Certificate. No Certificate shall be entitled to any benefit
under this Agreement or be valid for any purpose, unless such Certificate shall
have been manually authenticated by the Trust Administrator substantially in
the
form provided for herein, and such authentication upon any Certificate shall
be
conclusive evidence, and the only evidence, that such Certificate has been
duly
authenticated and delivered hereunder. All Certificates shall be dated the
date
of their authentication. Subject to Section 5.02(c), the Floating Rate
Certificates shall be Book-Entry Certificates. The other Classes of Certificates
shall not be Book-Entry Certificates.
| SECTION 5.02 |
Registration
of Transfer and Exchange of
Certificates.
|
(a) The
Certificate Registrar shall cause to be kept at the Corporate Trust Office
a
Certificate Register in which, subject to such reasonable regulations as it
may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trust Administrator shall initially serve as Certificate Registrar for
the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided.
Upon
surrender for registration of transfer of any Certificate at any office or
agency of the Certificate Registrar maintained for such purpose pursuant to
the
foregoing paragraph which office shall initially be the offices of the Trust
Administrator’s agent located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust Services Soundview Homes Loan Trust
2007-1 and, in the case of a Residual Certificate, upon satisfaction of the
conditions set forth below, the Trust Administrator on behalf of the Trust
shall
execute, authenticate and deliver, in the name of the designated transferee
or
transferees, one or more new Certificates of the same aggregate Percentage
Interest.
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange, the Trust
Administrator shall execute on behalf of the Trust and authenticate and deliver
the Certificates which the Certificateholder making the exchange is entitled
to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall (if so required by the Trust Administrator or the Certificate
Registrar) be duly endorsed by, or be accompanied by a written instrument of
transfer satisfactory to the Trust Administrator and the Certificate Registrar
duly executed by, the Holder thereof or his attorney duly authorized in writing.
In addition, (i) with respect to each Class R Certificate, the holder thereof
may exchange, in the manner described above, such Class R Certificate for four
separate certificates, each representing such holder’s respective Percentage
Interest in the Class R-1 Interest, the Class R-2 Interest and the Class R-3
Interest that was evidenced by the Class R Certificate being exchanged and
(ii)
with respect to each Class R-X Certificate, the holder thereof may exchange,
in
the manner described above, such Class R-X Certificate for three separate
certificates, each representing such holder’s respective Percentage Interest in
the Class R-4 Interest, the Class R-5 Interest and the Class R-6 Interest that
was evidenced by the Class R-X Certificate being exchanged.
(b) Except
as
provided in paragraph (c) below, the Book-Entry Certificates shall at all times
remain registered in the name of the Depository or its nominee and at all times:
(i) registration of such Certificates may not be transferred by the Trust
Administrator except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect
to
ownership and transfers of such Certificates; (iii) ownership and transfers
of
registration of such Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iv) the Depository
may collect its usual and customary fees, charges and expenses from its
Depository Participants; (v) the Trustee, the Trust Administrator, the Master
Servicer and the Depositor may for all purposes deal with the Depository as
representative of the Certificate Owners of the Certificates for purposes of
exercising the rights of Holders under this Agreement, and requests and
directions for and votes of such representative shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners;
(vi)
the Trust Administrator may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and Persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners; and (vii) the
direct participants of the Depository shall have no rights under this Agreement
under or with respect to any of the Certificates held on their behalf by the
Depository, and the Depository may be treated by the Trust Administrator and
its
agents, employees, officers and directors as the absolute owner of the
Certificates for all purposes whatsoever.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute a Letter of Representations with the Depository or take such other
action as may be necessary or desirable to register a Book-Entry Certificate
to
the Depository. In the event of any conflict between the terms of any such
Letter of Representation and this Agreement, the terms of this Agreement shall
control.
(c) If
(i)(x)
the Depository or the Depositor advises the Trust Administrator in writing
that
the Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Trustee or the Depositor is unable
to
locate a qualified successor or (ii) after the occurrence of a Servicer Event
of
Termination or a Master Servicer Event of Termination, the Certificate Owners
of
the Book-Entry Certificates representing Percentage Interests of such Classes
aggregating not less than 51% advise the Trust Administrator and Depository
through the Financial Intermediaries and the Depository Participants in writing
that the continuation of a book-entry system through the Depository to the
exclusion of definitive, fully registered certificates (the “Definitive
Certificates”) to Certificate Owners is no longer in the best interests of the
Certificate Owners. Upon surrender to the Certificate Registrar of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trust Administrator
shall
in the case of (i) and (ii) above, execute on behalf of the Trust and
authenticate the Definitive Certificates. None of the Depositor, the Master
Servicer, the Servicers, the Trustee or the Trust Administrator shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the Trustee, the Trust Administrator, the Certificate
Registrar, the Servicers, the Master Servicer, any Paying Agent and the
Depositor shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
(d) No
transfer, sale, pledge or other disposition of any Class C Certificate, Class
P
Certificate, Residual Certificate, the Class FL Certificates or Class X
Certificate (the “Private Certificates”) shall be made unless such disposition
is exempt from the registration requirements of the Securities Act of 1933,
as
amended (the “Securities Act”), and any applicable state securities laws or is
made in accordance with the Securities Act and laws. In the event of any such
transfer (other than in connection with (i) the initial transfer of any Private
Certificate by the Depositor to an Affiliate of the Depositor or, in the case
of
the Class R-X Certificates, the first transfer by an Affiliate of the Depositor
or the first transfer by the initial transferee of an Affiliate of the
Depositor, (ii) the transfer of any Private Certificate to the issuer under
the
Indenture or the indenture trustee under the Indenture or (iii) a transfer
of
any Private Certificate from the issuer under the Indenture or the indenture
trustee under the Indenture to the Depositor or an Affiliate of the Depositor),
(x) unless such transfer is made in reliance upon Rule 144A (as evidenced by
the
investment letter delivered to the Trust Administrator, in substantially the
form attached hereto as Exhibit J) under the Securities Act, the Trust
Administrator and the Depositor shall require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trust Administrator and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the Securities Act or is being made
pursuant to the Securities Act, which Opinion of Counsel shall not be an expense
of the Trust Administrator or the Depositor or (y) the Trust Administrator
shall
require the transferor to execute a transferor certificate (in substantially
the
form attached hereto as Exhibit L) and the transferee to execute an investment
letter (in substantially the form attached hereto as Exhibit J) acceptable
to
and in form and substance reasonably satisfactory to the Depositor and the
Trust
Administrator certifying to the Depositor and the Trust Administrator the facts
surrounding such transfer, which investment letter shall not be an expense
of
the Trust Administrator or the Depositor. The Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trust Administrator and the Depositor against any liability that may result
if
the transfer is not so exempt or is not made in accordance with such federal
and
state laws.
Notwithstanding
the foregoing, in the event of any such transfer of any Ownership Interest
in
any Private Certificate that is a Book-Entry Certificate, except with respect
to
the initial transfer of any such Ownership Interest by the Depositor, such
transfer shall be required to be made in reliance upon Rule 144A under the
Securities Act, and the transferor will be deemed to have made each of the
transferor representations and warranties set forth Exhibit L hereto in respect
of such interest as if it was evidenced by a Definitive Certificate and the
transferee will be deemed to have made each of the transferee representations
and warranties set forth Exhibit J hereto in respect of such interest as if
it
was evidenced by a Definitive Certificate. The Certificate Owner of any such
Ownership Interest in any such Book-Entry Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trust Administrator
and
the Depositor against any liability that may result if the transfer is not
so
exempt or is not made in accordance with such federal and state
laws.
Notwithstanding
the foregoing, no certification or Opinion of Counsel described above in this
Section 5.02(d) will be required in connection with the transfer, on the Closing
Date, of any Residual Certificate by the Depositor to an “accredited investor”
within the meaning of Rule 501 of the Securities Act.
No
transfer of any Class C Certificate shall be made unless the transferee of
such
Class C Certificate provides to the Trust Administrator, the Swap Provider
and
the Interest Rate Cap Provider the appropriate tax certification form (i.e.,
IRS
Form W-9 or IRS Form W-8BEN, W-8IMY, or W-8ECI, as applicable (or
any
successor thereto))
as a
condition to such transfer and agrees to update
such forms (i) upon expiration of any such form, (ii) as required under then
applicable U.S. Treasury Regulations and (iii) promptly upon learning that
any
IRS Form W-9
or
IRS Form W-8BEN, W-8IMY, or W-8ECI, as applicable
(or any
successor thereto), has become obsolete or incorrect. In addition, no transfer
of any Class C Certificate shall be made if such transfer would cause the
Supplemental Interest Trust or the Cap Account to be beneficially owned by
two
or more persons for federal income tax purposes, or continue to be so treated,
unless (a) each proposed transferee of such Class C Certificate complies with
the foregoing conditions, (b) the proposed majority Holder of the Class C
Certificates (or each Holder, if there is or would be no majority Holder) (A)
provides, or causes to be provided, on behalf of the Supplemental Interest
Trust
and the Cap Account, if applicable, the appropriate tax certification form
that
would be required from the Supplemental Interest Trust or the Cap Account,
as
applicable, to eliminate any withholding or deduction for taxes from amounts
payable by the Swap Provider or the Interest Rate Cap Provider, pursuant to
the
Interest Rate Swap Agreement or the Interest Rate Cap Agreement, to the Trust
Administrator, the Swap Provider and the Interest Rate Cap Provider on behalf
of
the Supplemental Interest Trust or the Cap Account (i.e., IRS Form W-9 or IRS
Form W-8BEN, W-8IMY or W-8ECI, as applicable (or any successor form thereto)
as
a condition to such transfer, together with any applicable attachments) and
(B)
agrees to update such form (x) upon expiration of any such form, (y) as required
under then applicable U.S. Treasury regulations and (z) promptly upon learning
that such form has become obsolete or incorrect. If, under applicable U.S.
Treasury regulations, such tax certification form may only be signed by a
trustee acting on behalf of the Supplemental Interest Trust or the Cap Account,
then the Supplemental Interest Trust Trustee or the Trust Administrator, as
applicable, shall sign such certification form if so requested by a Holder
of
the Class C Certificates.
Upon
receipt of any such tax certification form from a transferee of any Class C
Certificate pursuant to the immediately preceding paragraph, the Trust
Administrator shall provide a copy of any such tax certification form to the
Swap Provider and the Interest Rate Cap Provider, upon its request, solely
to
the extent the Swap Provider or the Interest Rate Cap Provider has not received
such IRS Form directly from the Holder of the Class C Certificates. Each Holder
of a Class C Certificate by its purchase of such Certificate is deemed to
consent to any such IRS Form being so forwarded. Upon the request of the Swap
Provider or the Interest Rate Cap Provider, the Trust Administrator shall be
required to forward any tax certification received by it to the Swap Provider
or
the Interest Rate Cap Provider at the last known address provided to it, and,
subject to Section 8.01, shall not be liable for the receipt of such tax
certification by the Swap Provider or the Interest Rate Cap Provider, nor any
action taken or not taken by the Swap Provider or the Interest Rate Cap Provider
with respect to such tax certification. Any purported sales or transfers of
any
Class C Certificate to a transferee which does not comply with the requirements
of the preceding paragraph shall be deemed null and void under this Agreement.
The Trust Administrator shall have no duty to take any action to correct any
misstatement or omission in any tax certification provided to it by the Holder
of the Class C Certificates and forwarded to the Swap Provider or the Interest
Rate Cap Provider.
No
transfer of a Private Certificate or any interest therein shall be made to
any
Plan, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person acquiring such Certificates with “Plan Assets” of a Plan within the
meaning of the Department of Labor regulation promulgated at 29 C.F.R. §
2510.3-101 (“Plan Assets”), as certified by such transferee in the form of
Exhibit M, unless the Trust Administrator is provided with an Opinion of Counsel
for the benefit of the Trustee, the Trust Administrator, the Depositor, the
Master Servicer and the Servicers and on which they may rely which establishes
to the satisfaction of the Depositor, the Trust Administrator, the Servicers
and
the Master Servicer that the purchase of such Certificates is permissible under
applicable law, will not constitute or result in any prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Depositor,
the
Master Servicer, the Servicers, the Trust Administrator, the Trustee or the
Trust Fund to any obligation or liability (including obligations or liabilities
under ERISA or Section 4975 of the Code) in addition to those undertaken in
this
Agreement, which Opinion of Counsel shall not be an expense of the Depositor,
the Master Servicer, the Servicers, the Trust Administrator, the Trustee or
the
Trust Fund. Neither a certification nor an Opinion of Counsel will be required
in connection with (i) the initial transfer of any Private Certificate by the
Depositor to an Affiliate of the Depositor, (ii) the transfer of any Private
Certificate to the issuer under the Indenture or the indenture trustee under
the
Indenture or (iii) a transfer of any Private Certificate from the issuer under
the Indenture or the indenture trustee under the Indenture to the Depositor
or
an Affiliate of the Depositor (in which case, the Depositor or any Affiliate
thereof shall have deemed to have represented that such Affiliate is not a
Plan
or a Person investing Plan Assets) and the Trust Administrator shall be entitled
to conclusively rely upon a representation (which, upon the request of the
Trust
Administrator shall be a written representation) from the Depositor of the
status of such transferee as an affiliate of the Depositor.
For
so
long as the Supplemental Interest Trust is in existence, each beneficial owner
of a Floating Rate Certificate or any interest therein, shall be deemed to
have
represented, by virtue of its acquisition or holding of the Floating Rate
Certificate, or interest therein, that either (i) it is not a Plan or (ii)
(A)
it is an accredited investor within the meaning of Prohibited Transaction
Exemption (“PTE”) 90-59, 55 Fed. Reg. 36724 (September 6, 1990), as amended by
PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE 2000-58, 65 Fed. Reg. 67765
(November 13, 2000) and PTE 2002-41, 67 Fed. Reg. 54487 (August 22, 2002) (the
“Exemption”) and (B) the acquisition and holding of such Certificate and the
separate right to receive payments from the Supplemental Interest Trust are
eligible for the exemptive relief available under Prohibited Transaction Class
Exemption (“PTCE”) 84-14, 91-38, 90-1, 95-60 or 96-23.
Subsequent
to the termination of the Supplemental Interest Trust, each Transferee of a
Mezzanine Certificate will be deemed to have represented by virtue of its
purchase or holding of such Certificate (or interest therein) that either (a)
such Transferee is not a Plan or purchasing such Certificate with Plan Assets,
(b) except in the case of a Class M-10 Certificate, it has acquired and is
holding such Certificate in reliance on the Exemption and that it understands
that there are certain conditions to the availability of the Exemption including
that such Certificate must be rated, at the time of purchase, not lower than
“BBB-” (or its equivalent) by a Rating Agency or (c) the following conditions
are satisfied: (i) such Transferee is an insurance company, (ii) the source
of
funds used to purchase or hold such Certificate (or interest therein) is an
“insurance company general account” (as defined in PTCE 95-60), and (iii) the
conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied.
If
any
Certificate or any interest therein is acquired or held in violation of the
provisions of the three preceding paragraphs, 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 any such Certificate
or interest therein was effected in violation of the provisions of the three
preceding paragraphs shall indemnify and hold harmless the Depositor, the Master
Servicer, the Servicers, the Trust Administrator, the Trustee and the Trust
from
and against any and all liabilities, claims, costs or expenses incurred by
those
parties as a result of that acquisition or holding.
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
appointed the Depositor or its designee as its attorney-in-fact to negotiate
the
terms of any mandatory sale under clause (v) below and to execute all
instruments of transfer and to do all other things necessary in connection
with
any such sale, and the rights of each Person acquiring any Ownership Interest
in
a Residual Certificate are expressly subject to the following
provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trust
Administrator of any change or impending change in its status as a Permitted
Transferee.
(ii) No
Person
shall acquire an Ownership Interest in a Residual Certificate unless such
Ownership Interest is a pro
rata
undivided interest.
(iii) In
connection with any proposed transfer of any Ownership Interest in a Residual
Certificate, the Trust Administrator shall as a condition to registration of
the
transfer, require delivery to it, in form and substance satisfactory to it,
of
each of the following:
|
(A)
|
an
affidavit in the form of Exhibit K hereto from the proposed transferee
to
the effect that such transferee is a Permitted Transferee and that
it is
not acquiring its Ownership Interest in the Residual Certificate
that is
the subject of the proposed transfer as a nominee, trustee or agent
for
any Person who is not a Permitted Transferee;
and
|
|
(B)
|
a
covenant of the proposed transferee to the effect that the proposed
transferee agrees to be bound by and to abide by the transfer restrictions
applicable to the Residual
Certificates.
|
(iv) Any
attempted or purported transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of a Residual Certificate, then the prior Holder of such
Residual Certificate that is a Permitted Transferee shall, upon discovery that
the registration of transfer of such Residual Certificate was not in fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such Residual
Certificate. The Trust Administrator shall be under no liability to any Person
for any registration of transfer of a Residual Certificate that is in fact
not
permitted by this Section or for making any distributions due on such Residual
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 Trust
Administrator received the documents specified in clause (iii). The Trust
Administrator shall be entitled to recover from any Holder of a Residual
Certificate that was in fact not a Permitted Transferee at the time such
distributions were made all distributions made on such Residual Certificate.
Any
such distributions so recovered by the Trust Administrator shall be distributed
and delivered by the Trust Administrator to the prior Holder of such Residual
Certificate that is a Permitted Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trust Administrator shall have the right but not the obligation, without notice
to the Holder of such Residual Certificate or any other Person having an
Ownership Interest therein, to notify the Depositor to arrange for the sale
of
such Residual Certificate. The proceeds of such sale, net of commissions (which
may include commissions payable to the Depositor or its affiliates in connection
with such sale), expenses and taxes due, if any, will be remitted by the Trust
Administrator to the previous Holder of such Residual Certificate that is a
Permitted Transferee, except that in the event that the Trust Administrator
determines that the Holder of such Residual Certificate may be liable for any
amount due under this Section or any other provisions of this Agreement, the
Trust Administrator may withhold a corresponding amount from such remittance
as
security for such claim. The terms and conditions of any sale under this clause
(v) shall be determined in the sole discretion of the Trust Administrator and
it
shall not be liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trust Administrator upon receipt of reasonable compensation will provide to
the
Internal Revenue Service, and to the persons specified in Sections 860E(e)(3)
and (6) of the Code, information needed to compute the tax imposed under Section
860E(e)(5) of the Code on transfers of residual interests to disqualified
organizations.
The
foregoing provisions of this Section shall cease to apply to transfers occurring
on or after the date on which there shall have been delivered to the Trust
Administrator, in form and substance satisfactory to the Trust Administrator,
(i) written notification from each Rating Agency that the removal of the
restrictions on transfer set forth in this Section will not cause such Rating
Agency to downgrade its rating of the Certificates and (ii) an Opinion of
Counsel to the effect that such removal will not cause any REMIC created
hereunder to fail to qualify as a REMIC.
(e) No
service charge shall be made for any registration of transfer or exchange of
Certificates of any Class, 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 transfer or exchange of Certificates.
All
Certificates surrendered for registration of transfer or exchange shall be
canceled by the Certificate Registrar and disposed of pursuant to its standard
procedures.
| SECTION 5.03 |
Mutilated,
Destroyed, Lost or Stolen
Certificates.
|
If
(i)
any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (ii) there is delivered to the Trustee,
the
Depositor and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Trust Administrator, or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Trust Administrator shall
execute on behalf of the Trust, 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 Percentage Interest. Upon the issuance of any
new
Certificate under this Section, the Trust Administrator or the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) in connection therewith. Any duplicate Certificate issued pursuant
to
this Section, shall constitute complete and indefeasible evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
| SECTION 5.04 |
Persons
Deemed Owners.
|
The
Servicers, the Depositor, the Trustee, the Master Servicer, the Trust
Administrator, the Certificate Registrar, any Paying Agent and any agent of
the
Servicers, the Depositor, the Master Servicer, the Trust Administrator, the
Certificate Registrar or any Paying Agent may treat the Person, including a
Depository, in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
4.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Trust Administrator, the Trustee, the Certificate Registrar or
any
Paying Agent nor any agent of any of them shall be affected by notice to the
contrary.
| SECTION 5.05 |
Appointment
of Paying Agent.
|
(a) The
Paying Agent shall make distributions to Certificateholders from the
Distribution Account pursuant to Section 4.01. The duties of the Paying Agent
may include the obligation (i) to withdraw funds from the Collection Account
pursuant to Section 3.11(a) and for the purpose of making the distributions
referred to above and (ii) to distribute statements and provide information
to
Certificateholders as required hereunder. The Paying Agent hereunder shall
at
all times be an entity duly organized and validly existing under the laws of
the
United States of America or any state thereof, authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authorities. The Paying Agent shall initially be the Trust
Administrator.
ARTICLE
VI
THE
MASTER SERVICER, OCWEN AND THE DEPOSITOR
| SECTION 6.01 |
Liability
of the Master Servicer, Ocwen and the
Depositor.
|
The
Master Servicer and Ocwen
shall
be
liable in accordance herewith only to the extent of the obligations specifically
imposed upon and undertaken by the Master Servicer and Ocwen herein. The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the
Depositor.
| SECTION 6.02 |
Merger
or Consolidation of, or Assumption of the Obligations of Ocwen, the
Master
Servicer or the Depositor.
|
Any
entity into which Ocwen, the Master Servicer or Depositor may be merged or
consolidated, or any entity resulting from any merger, conversion or
consolidation to which Ocwen, the Master Servicer or the Depositor shall be
a
party, or any corporation succeeding to the business of Ocwen, the Master
Servicer or the Depositor, shall be the successor of Ocwen, the Master Servicer
or the Depositor, as the case may be, hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor servicer shall satisfy all the requirements of Section 7.02 with
respect to the qualifications of a successor servicer.
| SECTION 6.03 |
Limitation
on Liability of Ocwen, the Master Servicer and
Others.
|
Neither
the Master Servicer, Ocwen or the Depositor nor any of the directors or officers
or employees or agents of the Master Servicer, Ocwen or the Depositor shall
be
under any liability to the Trust or the Certificateholders for any action taken
or for refraining from the taking of any action by the Master Servicer, Ocwen
or
the Depositor in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Master
Servicer, Ocwen, the Depositor or any such Person against any liability which
would otherwise be imposed by reason of its willful misfeasance, bad faith
or
negligence in the performance of duties of the Master Servicer, Ocwen or the
Depositor, as the case may be, or by reason of its reckless disregard of its
obligations and duties of the Master Servicer, Ocwen or the Depositor, as the
case may be, hereunder; provided, further, that this provision shall not be
construed to entitle the Master Servicer or Ocwen to indemnity in the event
that
amounts advanced by the Master Servicer or Ocwen to retire any senior lien
exceed Liquidation Proceeds (in excess of related liquidation expenses) realized
with respect to the related Mortgage Loan. The Master Servicer and Ocwen and
any
director or officer or employee or agent of the Master Servicer and Ocwen 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, Ocwen and the Depositor, and any director or officer or
employee or agent of the Master Servicer, Ocwen or the Depositor, shall be
indemnified by the Trust and held harmless against (i) 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 related to any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability
or
expense shall be otherwise reimbursable pursuant to this Agreement) and any
loss, liability or expense incurred by reason of its willful misfeasance, bad
faith or negligence in the performance of duties hereunder or by reason of
its
reckless disregard of obligations and duties hereunder or (ii) any breach of
a
representation or warranty by the Seller or any Originator regarding the
Mortgage Loans. The Master Servicer, Ocwen or the Depositor may undertake any
such action which it may deem necessary or desirable in respect of this
Agreement, and the rights and duties of the parties hereto and the interests
of
the Certificateholders hereunder. In such event, the reasonable legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust and the Depositor, the Master
Servicer or Ocwen shall be entitled to be reimbursed therefor from the
Collection Account as and to the extent provided in Section 3.11, any such
right
of reimbursement being prior to the rights of the Certificateholders to receive
any amount in the Collection Account. The Master Servicer’s and Ocwen’s right to
indemnity or reimbursement pursuant to this Section shall survive any
resignation or termination of the Master Servicer and Ocwen pursuant to Section
6.04 or 7.01 with respect to any losses, expenses, costs or liabilities arising
prior to such resignation or termination (or arising from events that occurred
prior to such resignation or termination). This paragraph shall apply to the
Master Servicer and Ocwen solely in their capacity as Master Servicer and
Servicer hereunder and in no other capacities.
| SECTION 6.04 |
Limitation
on Resignation of Ocwen; Assignment of Master
Servicing.
|
Ocwen
shall not resign from the obligations and duties hereby imposed on it except
upon determination that its duties hereunder are no longer permissible under
applicable law. Any such determination pursuant to the preceding sentence
permitting the resignation of Ocwen shall be evidenced by an Opinion of Counsel
to such effect obtained at the expense of Ocwen and delivered to the Trustee,
the Trust Administrator and the Master Servicer. No resignation of Ocwen shall
become effective until the Master Servicer or (if the Master Servicer is Ocwen)
the Trustee or a successor servicer shall have assumed Ocwen’s responsibilities,
duties, liabilities (other than those liabilities arising prior to the
appointment of such successor) and obligations under this
Agreement.
Except
as
expressly provided herein, Ocwen shall not assign or transfer any of its rights,
benefits or privileges hereunder to any other Person, or delegate to or
subcontract with, or authorize or appoint any other Person to perform any of
the
duties, covenants or obligations to be performed by Ocwen hereunder. The
foregoing prohibition on assignment shall not prohibit Ocwen from designating
a
Sub-Servicer as payee of any indemnification amount payable to Ocwen hereunder;
provided, however, no Sub-Servicer shall be a third-party beneficiary hereunder
and the parties hereto shall not be required to recognize any Subservicer as
an
indemnitee under this Agreement.
The
Master Servicer may sell, assign or delegate its rights, duties and obligations
as Master Servicer under this Agreement in their entirety; provided, however,
that: (i) the purchaser or transferee accepting such sale, assignment and
delegation (a) shall be a Person qualified to service mortgage loans for Xxxxxx
Xxx or Xxxxxxx Mac; (b) shall have a net worth of not less than $50,000,000
(unless otherwise approved by each Rating Agency pursuant to clause (ii) below);
(c) shall be reasonably satisfactory to the Trustee (as evidenced in a writing
signed by the Trustee); and (d) shall execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it
as
master servicer under this Agreement from and after the effective date of such
assumption agreement; (ii) each Rating Agency shall be given prior written
notice of the identity of the proposed successor to the Master Servicer and
shall confirm in writing to the Master Servicer and the Trustee that any such
sale, assignment or delegation would not result in a withdrawal or a downgrading
of the rating on any Class of Certificates in effect immediately prior to such
sale, assignment or delegation; and (iii) the Master Servicer shall deliver
to
the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent to such action under this Agreement have been
fulfilled and such action is permitted by and complies with the terms of this
Agreement. No such sale, assignment or delegation shall affect any liability
of
the Master Servicer arising prior to the effective date thereof.
| SECTION 6.05 |
Successor
Master Servicer.
|
In
connection with the appointment of any successor Master Servicer or the
assumption of the duties of the Master Servicer, the Depositor or the Trustee
may make such arrangements for the compensation of such successor Master
Servicer out of payments on the Mortgage Loans as the Depositor or the Trustee
and such successor Master Servicer shall agree. If the successor Master Servicer
does not agree that such market value is a fair price, such successor Master
Servicer shall obtain two quotations of market value from third parties actively
engaged in the master servicing of single-family mortgage loans. Notwithstanding
the foregoing, the compensation payable to a successor Master Servicer may
not
exceed the compensation which the Master Servicer would have been entitled
to
retain if the Master Servicer had continued to act as Master Servicer
hereunder.
| SECTION 6.06 |
Delegation
of Duties.
|
In
the
ordinary course of business, Ocwen at any time may delegate any of its duties
hereunder to any Person, including any of its Affiliates, who agrees to conduct
such duties in accordance with standards comparable to those set forth in
Section 3.01. Such delegation shall not relieve Ocwen of its liabilities and
responsibilities with respect to such duties and shall not constitute a
resignation within the meaning of Section 6.04. Except as provided in Section
3.02, no such delegation is permitted that results in the delegee subservicing
any Mortgage Loans.
| SECTION 6.07 |
[Reserved].
|
| SECTION 6.08 |
Inspection.
|
Ocwen,
in
its capacity as Servicer, shall afford the Depositor, the Master Servicer,
the
Trust Administrator and the Trustee, upon reasonable notice, during normal
business hours, access to all records maintained by Ocwen in respect of its
rights and obligations hereunder and access to officers of Ocwen responsible
for
such obligations.
| SECTION 6.09 |
Duties
of the 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 the Credit Risk Management Agreement to the Credit Risk Manager
by
the Servicers and/or the Master Servicer. 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 Trust
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 with respect to the performance of the Credit Risk
Manager.
| SECTION 6.10 |
Limitation
Upon Liability of the Credit Risk
Manager.
|
Neither
the Credit Risk Manager, nor any of its directors, officers, employees, or
agents shall be under any liability to the Trustee, the Certificateholders,
the
Trust Administrator, the Servicers and/or the Master Servicer or the Depositor
for any action taken or for refraining from the taking of any action made in
good faith pursuant to this Agreement, in reliance upon information provided
by
the Servicers and/or the Master 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 or bad faith
in
its performance of its duties. 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 Ocwen
and/or the Master Servicer pursuant to the Credit Risk Management Agreement
in
the performance of its duties thereunder and hereunder.
| SECTION 6.11 |
Removal
of the Credit Risk Manager.
|
The
Credit Risk Manager may be removed as Credit Risk Manager by the Depositor
at
any time, without cause, with the consent of Certificateholders holding not
less
than 66 2/3% of the Voting Rights, upon ten (10) days prior written notice.
The
Depositor shall provide such written notice to the Trustee and the Trust
Administrator and upon receipt of such notice and evidence of such
Certificateholders’ consent, the Trustee and the Trust Administrator shall
provide written notice to the Credit Risk Manager of its removal, effective
upon
receipt of such notice.
ARTICLE
VII
DEFAULT
| SECTION 7.01 |
Master
Servicer Events of Termination and Servicer Events of
Termination.
|
(a) With
respect to Ocwen, if any one of the following events (“Servicer Events of
Termination”) shall occur and be continuing:
(i) The
failure by Ocwen to make any Advance; or (B) any other failure by Ocwen to
deposit in the Collection Account or Distribution Account any deposit required
to be made under the terms of this Agreement which continues unremedied for
a
period of one Business Day after the date upon which written notice (which
shall
also be provided via facsimile at the number listed in Section 11.05 of this
Agreement) of such failure shall have been given to Ocwen by the Trust
Administrator or to Ocwen and the Trust Administrator by any Holders of a
Regular Certificate evidencing at least 25% of the Voting Rights;
or
(ii) The
failure by Ocwen to make any required Servicing Advance which failure continues
unremedied for a period of 30 days, or the failure by Ocwen duly to observe
or
perform, in any material respect, any other covenants, obligations or agreements
of Ocwen as set forth in this Agreement, which failure continues unremedied
for
a period of 30 days (or if such failure or breach cannot be remedied within
30
days, then such remedy shall have commenced within 30 days and diligently
pursued thereafter; provided, however, that in no event shall such failure
or
breach be allowed to exist for a period of greater than 90 days), after the
date
(A) on which written notice of such failure, requiring the same to be remedied,
shall have been given to Ocwen by the Trust Administrator or to the Trust
Administrator by any Holders of a Regular Certificate evidencing at least 25%
of
the Voting Rights or (B) of actual knowledge of such failure by a Servicing
Officer of Ocwen; or
(iii) The
entry
against Ocwen of a decree or order by a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, conservatorship,
receivership, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 days;
(iv) Ocwen
shall voluntarily go into liquidation, consent to the appointment of a
conservator or receiver or liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to Ocwen or of or relating to all or substantially
all of its property; or a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver, liquidator or similar person 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 Ocwen and such decree or order shall have remained in
force
undischarged, unbonded or unstayed for a period of 60 days; or Ocwen 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
(v) A
withdrawal or downgrade of Ocwen rating of Ocwen by Xxxxx’x to “SQ3-” or
lower;
then,
and
in each and every such case, so long as a Servicer Event of Termination shall
not have been remedied within the applicable grace period, (x) with respect
solely to clause (i)(A) above, if such Advance is not made by 11:00 A.M., New
York time, on the Business Day immediately following Servicer Remittance Date
(provided the Trust Administrator shall give Ocwen notice of such failure to
advance by 5:00 P.M. New York time on the Servicer Remittance Date), the Trust
Administrator shall terminate all of the rights and obligations of Ocwen under
this Agreement, to the extent permitted by law, and in and to the Ocwen Mortgage
Loans and the proceeds thereof and the Master Servicer or the Trustee
(as
successor master servicer and servicer),
or a
successor servicer appointed in accordance with Section 7.02, shall make such
Advance in accordance with Section 4.04 and assume, pursuant to Section 7.02,
the duties of a successor Servicer and (y) in the case of (i)(B), (ii), (iii),
(iv) and (v) above, the Trust Administrator shall, at the direction of the
Holders of each Class of Regular Certificates evidencing Percentage Interests
aggregating not less than 51%, by notice then given in writing to Ocwen (and
to
the Trust Administrator if given by Holders of Certificates), terminate all
of
the rights and obligations of Ocwen as servicer under this Agreement. Any such
notice to Ocwen shall also be given to each Rating Agency, the Depositor and
Ocwen. On or after the receipt by Ocwen (and by the Trustee if such notice
is
given by the Holders) of such written notice, all authority and power of Ocwen
under this Agreement, whether with respect to the Certificates or the Ocwen
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under this Section; and, without limitation, and the Master Servicer
and
the Trustee are hereby authorized and empowered to execute and deliver, on
behalf of Ocwen, 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 of each Ocwen Mortgage Loan and related
documents or otherwise. Ocwen agrees to cooperate with the Master Servicer
and
the Trustee (or the applicable successor servicer) in effecting the termination
of the responsibilities and rights of Ocwen hereunder, including, without
limitation, the delivery to the Master Servicer and the Trustee (as successor
master servicer and servicer) of all documents and records requested by it
to
enable it to assume Ocwen’s functions under this Agreement within ten Business
Days subsequent to such notice, the transfer within one Business Day subsequent
to such notice to the Trustee (or the applicable successor Servicer) for the
administration by it of all cash amounts that shall at the time be held by
Ocwen
and to be deposited by it in the Collection Account, the Distribution Account,
any REO Account or any Servicing Account or that have been deposited by Ocwen
in
such accounts or thereafter serviced by Ocwen with respect to the Ocwen Mortgage
Loans or any REO Property received by Ocwen (provided, however, that Ocwen
shall
continue to be entitled to receive all amounts accrued or owing to it under
this
Agreement on or prior to the date of such termination, whether in respect of
Advances, Servicing Advances, accrued Servicing Fees or otherwise, and shall
continue to be entitled to the benefits of Section 6.03, notwithstanding any
such termination, with respect to events occurring prior to such termination).
All reasonable costs and expenses (including attorneys’ fees) incurred in
connection with transferring the Mortgage Files to the successor Servicer and
amending this Agreement to reflect such succession as Servicer pursuant to
this
Section shall be paid by the predecessor Servicer (or if the predecessor
Servicer is the Trustee, the initial Servicer) upon presentation of reasonable
documentation of such costs and expenses and to the extent not paid by Ocwen,
by
the Trust.
(b) “Master
Servicer Event of Termination,” wherever used herein, means any one of the
following events:
(1) the
Master Servicer fails to cause to be deposited in the Distribution Account
any
amount so required to be deposited pursuant to this Agreement (other than an
Advance), and such failure continues unremedied for a period of three Business
Days after the date upon which written notice of such failure, requiring the
same to be remedied, shall have been given to the Master Servicer;
or
(2) the
Master Servicer fails to observe or perform in any material respect any other
material covenants and agreements set forth in this Agreement to be performed
by
it, which covenants and agreements materially affect the rights of
Certificateholders, and such failure continues unremedied for a period of 60
days after the date on which written notice of such failure, properly requiring
the same to be remedied, shall have been given to the Master Servicer by the
Trustee or to the Master Servicer and the Trustee by the Holders of Certificates
evidencing not less than 25% of the Voting Rights; or
(3) there
is
entered against the Master Servicer a decree or order by a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the winding
up or liquidation of its affairs, and the continuance of any such decree or
order is unstayed and in effect for a period of 60 consecutive days, or an
involuntary case is commenced against the Master Servicer under any applicable
insolvency or reorganization statute and the petition is not dismissed within
60
days after the commencement of the case; or
(4) the
Master Servicer consents to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or
substantially all of its property; or the Master Servicer admits in writing
its
inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes
an
assignment for the benefit of its creditors, or voluntarily suspends payment
of
its obligations; or
(5) the
Master Servicer assigns or delegates its duties or rights under this Agreement
in contravention of the provisions permitting such assignment or delegation
under Section 6.05; or
(6) any
failure of the Master Servicer to make any Advance (other than a Nonrecoverable
Advance) required to be made from its own funds pursuant to Section 4.03 by
5:00 p.m. New York time on the Business Day prior to the applicable Distribution
Date.
In
each
and every such case, so long as such Master Servicer Event of Termination with
respect to the Master Servicer shall not have been remedied, either the Trustee
or the Holders of Certificates evidencing not less than 51% of the Voting
Rights, by notice in writing to the Depositor, the Master Servicer (and to
the
Trustee if given by such Certificateholders), with a copy to the Rating Agencies
and the Credit Risk Manager, may terminate all of the rights and obligations
(but not the liabilities) of the Master Servicer under this Agreement and in
and
to the Mortgage Loans and/or the REO Property master serviced by the Master
Servicer and the proceeds thereof. Upon the receipt by the Master Servicer
of
the written notice, all authority and power of the Master Servicer under this
Agreement, whether with respect to the Certificates, the Mortgage Loans, REO
Property or under any other related agreements (but only to the extent that
such
other agreements relate to the Mortgage Loans or related REO Property) shall,
subject to Section 7.03, automatically and without further action pass to
and be vested in the Trustee(as successor master servicer and servicer) pursuant
to this Section 7.01(b); and, without limitation, the Trustee (as successor
master servicer and servicer) is hereby authorized and empowered to execute
and
deliver, on behalf of the Master Servicer as attorney-in-fact or otherwise,
any
and all documents and other instruments and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer’s rights and obligations hereunder, including, without limitation, the
transfer to the Trustee of (i) the property and amounts which are then or should
be part of the Trust Fund or which thereafter become part of the Trust Fund;
and
(ii) originals or copies of all documents of the Master Servicer reasonably
requested by the Trustee to enable it to assume the Master Servicer’s duties
thereunder. In addition to any other amounts which are then, or, notwithstanding
the termination of its activities under this Agreement, may become payable
to
the Master Servicer under this Agreement, the Master Servicer shall be entitled
to receive, out of any amount received on account of a Mortgage Loan or related
REO Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall
not
affect any obligations incurred by the Master Servicer prior to such
termination.
Notwithstanding
the foregoing, if a Master Servicer Event of Termination described in clause
(6)
of this Section 7.01(b) shall occur, the Trustee shall, by notice in
writing to the Master Servicer, which may be delivered by telecopy, immediately
terminate all of the rights and obligations of the Master Servicer thereafter
arising under this Agreement, but without prejudice to any rights it may have
as
a Certificateholder or to reimbursement of Advances and other advances of its
own funds, and the Trustee shall (as successor master servicer) act as provided
in Section 7.03 to carry out the duties of the Master Servicer, including
the obligation to make any Advance the nonpayment of which was a Master Servicer
Event of Termination described in clause (6) of this Section 7.01(b). Any
such action taken by the Trustee or the Trust Administrator must be prior to
the
distribution on the relevant Distribution Date.
| SECTION 7.02 |
Master
Servicer or Trustee to Act; Appointment of Successor
Servicer.
|
(c) Within
90
days of the time Ocwen (and the Trustee, if notice is sent by the Holders)
receives a notice of termination pursuant to Section 7.01 or 6.04, the Master
Servicer shall be the successor in all respects to Ocwen in its capacity as
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on Ocwen by the terms and provisions hereof arising
on
and after its succession. Notwithstanding
the foregoing, the parties hereto agree that the Master Servicer, in its
capacity as successor Servicer, immediately will assume all of the obligations
of Ocwen (or to the extent of a failure to make a required advance under any
other Servicing Agreement, will assume the obligations of the related Servicer)
to make Advances. Notwithstanding
the foregoing, the Master Servicer, in its capacity as successor Servicer,
shall
not be responsible for the lack of information and/or documents that it cannot
obtain through reasonable efforts. As compensation therefor, the Master Servicer
shall be entitled to such compensation as Ocwen would have been entitled to
hereunder if no such notice of termination had been given. Notwithstanding
the
above, (i) if the Master Servicer is unwilling to act as successor Servicer
or
(ii) if the Master Servicer is legally unable so to act, the Master Servicer
shall appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution, bank or other mortgage loan
or
home equity loan servicer having a net worth of not less than $50,000,000 as
the
successor to Ocwen hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of Ocwen hereunder; provided, that
the
appointment of any such successor Servicer will not result in the qualification,
reduction or withdrawal of the ratings assigned to the Certificates by the
Rating Agencies as evidenced by a letter to such effect from the Rating
Agencies. Pending appointment of a successor to Ocwen hereunder, the Master
Servicer or the Trustee shall act in such capacity as hereinabove provided.
In
connection with such appointment and assumption, the successor shall be entitled
to receive compensation out of payments on Ocwen Mortgage Loans in an amount
equal to the compensation which Ocwen would otherwise have received pursuant
to
Section 3.18 (or such other compensation as the Master Servicer and such
successor shall agree, not to exceed the Servicing Fee). The appointment of
a
successor Servicer shall not affect any liability of the predecessor Servicer
which may have arisen under this Agreement prior to its termination as Servicer
to pay any deductible under an insurance policy pursuant to Section 3.14 or
to
reimburse the Master Servicer or Trustee pursuant to Section 3.06), nor shall
any successor Servicer be liable for any acts or omissions of the predecessor
Servicer or for any breach by such Servicer of any of its representations or
warranties contained herein or in any related document or agreement. The Master
Servicer or the Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
All Servicing Transfer Costs shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs, and if such predecessor
Servicer defaults in its obligation to pay such costs, such costs shall be
paid
by the successor Servicer, the Master Servicer or the Trustee (in which case
the
successor Servicer, the Master Servicer or the Trustee, as applicable, shall
be
entitled to reimbursement therefor from the assets of the Trust).
(d) Any
successor to Ocwen, including the Master Servicer, shall during the term of
its
service as servicer continue to service and administer the Ocwen Mortgage Loans
for the benefit of Certificateholders, and maintain in force a policy or
policies of insurance covering errors and omissions in the performance of its
obligations as Servicer hereunder and a fidelity bond in respect of its
officers, employees and agents to the same extent as Ocwen is so required
pursuant to Section 3.14.
(e) In
connection with the resignation, removal or expiration of the term of Ocwen
hereunder, or in connection with the resignation or removal of any successor
to
Ocwen (or any other successor to Ocwen appointed hereunder) acting as successor
Servicer hereunder, either (i) the successor Servicer, (or any other successor
to Ocwen appointed hereunder) acting as successor Servicer hereunder, shall
represent and warrant that it is a member of MERS in good standing and shall
agree to comply in all material respects with the rules and procedures of MERS
in connection with the servicing of the Ocwen Mortgage Loans that are registered
with MERS, in which case the predecessor Servicer shall cooperate with the
successor Servicer in causing MERS to revise its records to reflect the transfer
of servicing to the successor Servicer as necessary under MERS’ rules and
regulations or (ii) the predecessor Servicer shall cooperate with the successor
Servicer in causing MERS to execute and deliver an assignment of Mortgage in
recordable form to transfer the Mortgage from MERS to the Master Servicer or
the
Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS® System to the
successor Servicer. The predecessor Servicer shall file or cause to be filed any
such assignment in the appropriate recording office. The predecessor Servicer
shall bear any and all fees of MERS, costs of preparing any assignments of
Mortgage, and fees and costs of filing any assignments of Mortgage that may
be
required under this paragraph.
| SECTION 7.03 |
Trustee
to Act; Appointment of Successor Master
Servicer.
|
(a) Upon
the
receipt by the Master Servicer of a notice of termination pursuant to
Section 7.01(b) or an Opinion of Counsel rendered by Independent counsel
pursuant to Section 6.05(b) to the effect that the Master Servicer is
legally unable to act or to delegate its duties to a Person which is legally
able to act, the Trustee shall automatically become the successor in all
respects to the Master Servicer in its capacity under this Agreement and the
transactions set forth or provided for herein and shall thereafter be subject
to
all the responsibilities, duties, liabilities and limitations on liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof; provided, however, that the Trustee (i) shall have no obligation
whatsoever with respect to any liability (other than Advances deemed recoverable
and not previously made) incurred by the Master Servicer at or prior to the
time
of termination and (ii) shall not be obligated to perform any obligation of
the
Master Servicer under Section 3.20 or 3.21 with respect to any period of time
during which the Trustee was not the Master Servicer. As compensation therefor,
but subject to Section 6.05, the Trustee shall be entitled to compensation
which the Master Servicer would have been entitled to retain if the Master
Servicer had continued to act hereunder, except for those amounts due the Master
Servicer as reimbursement permitted under this Agreement for advances previously
made or expenses previously incurred. Notwithstanding the above, the Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable
so to
act, appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution which is a Xxxxxx Xxx- or
Xxxxxxx Mac-approved servicer, and with respect to a successor to the Master
Servicer only, having a net worth of not less than $10,000,000, as the successor
to the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder;
provided, that the Depositor shall obtain consent and a letter or other evidence
each Rating Agency that the ratings, if any, on each of the Certificates will
not be lowered as a result of the selection of the successor to the Master
Servicer. Pending appointment of a successor to the Master Servicer hereunder,
the Trustee shall act in such capacity as hereinabove provided. In connection
with such appointment and assumption, the Trustee may make such arrangements
for
the compensation of such successor out of payments on the Mortgage Loans as
it
and such successor shall agree; provided, however, that the provisions of
Section 6.05 shall apply, the compensation shall not be in excess of that
which the Master Servicer would have been entitled to if the Master Servicer
had
continued to act hereunder, and that such successor shall undertake and assume
the obligations of the Trustee to pay compensation to any third Person acting
as
an agent or independent contractor in the performance of master servicing
responsibilities hereunder. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate
any
such succession.
If
the
Master Servicer and the Trust Administrator are the same entity, then at any
time the Master Servicer resigns or is removed as Master Servicer, the Trust
Administrator shall also be removed hereunder. All reasonable Master Servicing
Transfer Costs shall be paid by the predecessor Master Servicer (or, if the
Trustee is the predecessor master servicer, the Trust Fund) upon presentation
of
reasonable documentation of such costs, and if such predecessor Master Servicer
defaults in its obligation to pay such costs, such costs shall be paid by the
successor Master Servicer or the Trustee (in which case the successor Master
Servicer or the Trustee, as applicable, shall be entitled to reimbursement
therefor from the assets of the Trust Fund).
If
the
Trustee shall succeed to any duties of the Master Servicer respecting the
Mortgage Loans as provided herein, it shall do so in a separate capacity and
not
in its capacity as Trustee and, accordingly, the provisions of Article VIII
shall be inapplicable to the Trustee in its duties as the successor to the
Master Servicer in the master servicing of the Mortgage Loans (although such
provisions shall continue to apply to the Trustee in its capacity as Trustee);
the provisions of Article VI, however, shall apply to it in its capacity as
successor Master Servicer.
| SECTION 7.04 |
Waiver
of Defaults.
|
The
Majority Certificateholders may, on behalf of all Certificateholders, waive
any
events permitting removal of Ocwen as servicer pursuant to this Article VII,
provided, however, that the Majority Certificateholders may not waive a default
in making a required distribution on a Certificate without the consent of the
Holder of such Certificate. Upon any waiver of a past default, such default
shall cease to exist and any Master Servicer Event of Termination 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 thereto except to the extent expressly so waived.
Notice of any such waiver shall be given by the Trust Administrator or the
Trustee, as applicable, to the Rating Agencies.
| SECTION 7.05 |
Notification
to Certificateholders.
|
(a) Upon
any
termination or appointment of a successor to Ocwen or the Master Servicer
pursuant to this Article VII or Section 6.04, the Trust Administrator, or in
the
event of the termination of the Master Servicer, the Trustee (or such other
trust administrator) shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register and each Rating Agency.
(b) No
later
than 60 days after the occurrence of any event which constitutes or which,
with
notice or a lapse of time or both, would constitute a Servicer Event of
Termination or a Master Servicer Event of Termination for five Business Days
after a Responsible Officer of the Trust Administrator (in the case of a
Servicer Event of Termination) or the Trustee (in the case of a Master Servicer
Event of Termination) becomes aware of the occurrence of such an event, the
Trust Administrator or Trustee, as applicable, shall transmit by mail to the
Credit
Risk Manager
and all
Certificateholders notice of such occurrence unless such default, Servicer
Event
of Termination or Master Servicer Event of Termination shall have been waived
or
cured.
| SECTION 7.06 |
Survivability
of Servicer and Master Servicer
Liabilities.
|
Notwithstanding
anything herein to the contrary, upon termination of Ocwen or the Master
Servicer hereunder, any liabilities of Ocwen or the Master Servicer, as
applicable, which accrued prior to such termination shall survive such
termination.
ARTICLE
VIII
THE
TRUSTEE AND THE TRUST ADMINISTRATOR
| SECTION 8.01 |
Duties
of Trustee and Trust Administrator.
|
The
Trustee and the Trust Administrator, prior to the occurrence of a Servicer
Event
of Termination or Master Servicer Event of Termination and after the curing
of
all Servicer Events of Termination or Master Servicer Events of Termination
which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement. If a Servicer Event of
Termination or Master Servicer Event of Termination has occurred (which has
not
been cured) of which a Responsible Officer has knowledge, each of the Trustee
and the Trust 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 man would exercise or use under the circumstances in
the
conduct of his own affairs.
Each
of
the Trustee and the Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement; provided, however,
that neither the Trustee nor the Trust Administrator will be responsible for
the
accuracy or content of any such resolutions, certificates, statements, opinions,
reports, documents or other instruments. If any such instrument is found not
to
conform to the requirements of this Agreement in a material manner the Trustee
or the Trust Administrator, as applicable, shall take such action as it deems
appropriate to have the instrument corrected, and if the instrument is not
corrected to the Trustee’s or the Trust Administrator’s satisfaction, the
Trustee or the Trust Administrator, as applicable, will provide notice thereof
to the Certificateholders.
No
provision of this Agreement shall be construed to relieve the Trustee or the
Trust Administrator from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however,
that:
(i) prior
to
the occurrence of a Servicer Event of Termination or Master Servicer Event
of
Termination, and after the curing of all such Servicer Events of Termination
or
Master Servicer Events of Termination which may have occurred, the duties and
obligations of the Trustee and the Trust Administrator shall be determined
solely by the express provisions of this Agreement, the Trustee and the Trust
Administrator shall not be liable except for the performance of such duties
and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Trust Administrator and, in the absence of bad faith on the part of
the
Trustee or the Trust Administrator, as applicable, the Trustee or the Trust
Administrator, as applicable, may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee or the Trust Administrator,
as
the case may be, and conforming to the requirements of this
Agreement;
(ii) neither
the Trustee nor the Trust Administrator shall be personally liable for an error
of judgment made in good faith by a Responsible Officer of the Trustee or the
Trust Administrator, as applicable, unless it shall be proved that the Trustee
or the Trust Administrator, as the case may be, was negligent in ascertaining
the pertinent facts;
(iii) neither
the Trustee nor the Trust 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 the Majority Certificateholders relating to
the
time, method and place of conducting any proceeding for any remedy available
to
the Trustee or the Trust Administrator, as applicable, or exercising or omitting
to exercise any trust or power conferred upon the Trustee, under this Agreement;
and
(iv) the
Trustee shall not be charged with knowledge of any failure by Ocwen to comply
with the obligations of Ocwen referred to in clauses (i) and (ii) of Section
7.01(a) or of the existence of any Servicer Event of Termination unless a
Responsible Officer of the Trustee at the Corporate Trust Office obtains actual
knowledge of such failure or the Trustee receives written notice of such failure
from the Depositor, Ocwen or the Majority Certificateholders.
Neither
the Trustee nor the Trust Administrator shall be required to expend or risk
its
own funds or otherwise incur financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it, and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Master Servicer under this Agreement, except
during such time, if any, as the Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, the Master Servicer
in
accordance with the terms of this Agreement.
| SECTION 8.02 |
Certain
Matters Affecting the Trustee and the Trust
Administrator.
|
(a) Except
as
otherwise provided in Section 8.01:
(i) either
the Trustee or the Trust Administrator may request and rely upon, and shall
be
protected in acting or refraining from acting upon, any resolution, Officers’
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or
other paper or document reasonably believed by it to be genuine and to have
been
signed or presented by the proper party or parties, and the manner of obtaining
consents and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee or the Trust Administrator may prescribe;
(ii) either
the Trustee or the Trust Administrator may consult with counsel and any Opinion
of Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) neither
the Trustee nor the Trust Administrator shall be under any obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation hereunder or in relation hereto,
at
the request, order or direction of any of the Certificateholders, pursuant
to
the provisions of this Agreement, unless such Certificateholders, shall have
offered to the Trustee or the Trust Administrator, as applicable, reasonable
security or indemnity against the costs, expenses and liabilities which may
be
incurred therein or thereby; the right of the Trustee or the Trust Administrator
to perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Trust Administrator shall
be answerable for other than its negligence or willful misconduct in the
performance of any such act;
(iv) neither
the Trustee nor the Trust Administrator shall be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to
be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) prior
to
the occurrence of a Servicer Event of Termination or Master Servicer Event
of
Termination and after the curing of all Servicer Events of Termination or Master
Servicer Events of Termination which may have occurred, neither the Trustee
nor
the Trust 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 documents, unless requested in writing to do so by the Majority
Certificateholder; provided, however, that if the payment within a reasonable
time to the Trustee or the Trust 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 Trust Administrator,
as
applicable, not reasonably assured to the Trustee or the Trust Administrator,
as
applicable, by the security afforded to it by the terms of this Agreement,
the
Trustee or the Trust Administrator, as applicable, may require reasonable
indemnity against such cost, expense or liability as a condition to such
proceeding. The reasonable expense of every such examination shall be paid
by
the related Servicer or, if paid by the Trustee or the Trust Administrator,
as
applicable, shall be reimbursed by the related Servicer upon demand and, if
not
reimbursed by the related Servicer, shall be reimbursed by the Trust. Nothing
in
this clause (v) shall derogate from the obligation of the related Servicer
to
observe any applicable law prohibiting disclosure of information regarding
the
Mortgagors;
(vi) the
Trustee or the Trust Administrator shall not be accountable, shall have no
liability and make no representation as to any acts or omissions hereunder
of
Ocwen until such time as the Trustee may be required to act as Servicer pursuant
to Section 7.02 and thereupon only for the acts or omissions of the Trustee
as
successor Servicer;
(vii) the
Trustee or the Trust Administrator may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, custodians or nominees;
(viii) the
right
of the Trustee or the Trust Administrator to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct
in
the performance of such act;
(ix) neither
the Trustee nor the Trust Administrator shall be personally liable for any
loss
resulting from the investment of funds held in the Collection Account or the
REO
Account made at the direction of Ocwen pursuant to Section 3.12;
and
(x) the
Trustee or the Trust Administrator or its Affiliates are permitted to receive
compensation that could be deemed to be in the Trustee’s or the Trust
Administrator’s economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. Such compensation shall not be considered
an
amount that is reimbursable or payable pursuant to Section 3.11.
In
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Applicable Law”), the
Trustee is required to obtain, verify and record certain information relating
to
individuals and entities which maintain a business relationship with the
Trustee. Accordingly, each of the parties agrees to provide to the Trustee
upon
its request from time to time such identifying information and documentation
as
may be available for such party in order to enable the Trustee to comply with
Applicable Law.
| SECTION 8.03 |
Trustee
and Trust Administrator Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained herein and in the Certificates (other than, with respect
to
the Trust Administrator, the authentication of the Trust Administrator on the
Certificates) shall be taken as the statements of the Depositor, and neither
the
Trustee nor the Trust Administrator assumes responsibility for the correctness
of the same. Neither the Trustee nor the Trust Administrator makes any
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than, with respect to the Trust Administrator, the signature
and authentication of the Trust Administrator on the Certificates) or of any
Mortgage Loan or related document or MERS or the MERS® System other than, with
respect to the Trust Administrator, the Trust Administrator’s execution and
authentication of the Certificates. Neither the Trustee nor the Trust
Administrator shall be accountable for the use or application by a Servicer,
or
for the use or application of any funds paid to a Servicer in respect of the
Mortgage Loans or deposited in or withdrawn from the Collection Account or
the
related Custodial Account by the related Servicer. The Trustee and the Trust
Administrator shall at no time have any responsibility or liability for or
with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Mortgaged Property; the existence
and
enforceability of any hazard insurance thereon; the validity of the assignment
of any Mortgage Loan to the Trustee or of any intervening assignment; the
completeness of any Mortgage Loan; the performance or enforcement of any
Mortgage Loan; the compliance by the Depositor, the Originator, the Seller
or
Ocwen with any warranty or representation made under this Agreement or in any
related document or the accuracy of any such warranty or representation prior
to
the Trustee’s receipt of notice or other discovery of any non-compliance
therewith or any breach thereof; any investment of monies by or at the direction
of Ocwen or any loss resulting therefrom, it being understood that the Trust
Administrator shall remain responsible for any Trust property that it may hold
in its individual capacity; the acts or omissions of any of Ocwen (other than
if
the Trust Administrator shall assume the duties of Ocwen pursuant to Section
7.02), any Sub-Servicer or any Mortgagor; any action of Ocwen, or any
Sub-Servicer taken in the name of the Trust Administrator; the failure of a
Servicer or any Sub-Servicer to act or perform any duties required of it as
agent of the Trust Administrator hereunder; or any action by the Trust
Administrator taken at the instruction of Ocwen; provided, however, that the
foregoing shall not relieve the Trustee of its obligation to perform its duties
under this Agreement, including, without limitation, the Trustee’s duty to
review the Mortgage Files pursuant to Section 2.01. Neither the Trust
Administrator nor the Trustee shall have 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 (unless the Trustee shall have become the successor
Servicer).
| SECTION 8.04 |
Trustee
and Trust Administrator May Own
Certificates.
|
The
Trustee and the Trust Administrator in its individual or any other capacity
may
become the owner or pledgee of Certificates with the same rights as it would
have if it were not Trustee or Trust Administrator may transact any banking
and
trust business with the Originator, any Servicer, the Depositor or their
Affiliates.
| SECTION 8.05 |
Trust
Administrator and Trustee Compensation and
Expenses.
|
(a) The
Trustee will be paid by the Master Servicer pursuant to a side letter between
each other.
(b) The
Trustee, the Trust Administrator or any director, officer, employee or agent
of
any of them, shall be indemnified by the Trust Fund and held harmless against
any loss, liability or expense (not including expenses and disbursements
incurred or made by the Trustee or the Trust Administrator, including the
compensation and the expenses and disbursements of its agents and counsel,
in
the ordinary course of the Trustee’s or the Trust Administrator’s performance in
accordance with the provisions of this Agreement) incurred by the Trustee or
by
the Trust Administrator arising out of or in connection with the acceptance
or
administration of the obligations and duties of the Trustee or the Trust
Administrator under this Agreement, other than any loss, liability or expense
(i) resulting from a breach of Ocwen’s or the Master Servicer’s obligations and
duties under this Agreement for which the Trustee or the Trust Administrator,
as
applicable, is indemnified under Section 8.05(b) or (ii) any loss, liability
or
expense incurred by reason of willful misfeasance, bad faith or negligence
of
the Trustee or of the Trust Administrator, as applicable, in the performance
of
its duties hereunder or by reason of the Trustee’s or the Trust Administrator’s,
as applicable, reckless disregard of obligations and duties hereunder or as
a
result of a breach of the Trustee’s or the Trust Administrator’s, as applicable,
obligations under Article X hereof. Any amounts payable to the Trustee, the
Trust Administrator or any director, officer, employee or agent of the Trustee
or the Trust Administrator, in respect of the indemnification provided by this
Section 8.05, or pursuant to any other right of reimbursement from the Trust
Fund that the Trustee, the Trust Administrator or any director, officer,
employee or agent of the Trustee or the Trust Administrator, may have hereunder
in its capacity as such, may be withdrawn by the Trust Administrator from the
Distribution Account at any time. The foregoing indemnity shall survive the
resignation or removal of the Trustee or the Trust Administrator.
| SECTION 8.06 |
Eligibility
Requirements for Trustee and Trust
Administrator.
|
Each
of
the Trustee and the Trust Administrator hereunder shall at all times be an
entity duly organized and validly existing under the laws of the United States
of America or any state thereof, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority. If such entity publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 8.06, the combined capital
and
surplus of such entity shall be deemed to be its combined capital and surplus
as
set forth in its most recent report of condition so published. The principal
offices of each of the Trustee and the Trust Administrator (other than the
initial Trustee and initial Trust Administrator) shall be in a state with
respect to which an Opinion of Counsel has been delivered to such Trustee or
Trust Administrator, as applicable, at the time such Trustee or Trust
Administrator, as applicable, is appointed Trustee or Trust Administrator,
as
applicable, to the effect that the Trust will not be a taxable entity under
the
laws of such state. In case at any time the Trustee or the Trust Administrator
shall cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee or the Trust Administrator, as applicable, shall resign
immediately in the manner and with the effect specified in Section
8.07.
| SECTION 8.07 |
Resignation
or Removal of Trustee or Trust
Administrator.
|
The
Trustee or the Trust Administrator may at any time resign and be discharged
from
the trusts hereby created by giving written notice thereof to the Depositor,
the
Servicers, the Master Servicer, each Rating Agency and, if the Trustee is
resigning, to the Trust Administrator, or, if the Trust Administrator is
resigning, to the Trustee. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor Trustee or Trust Administrator,
(which may be the same Person in the event both the Trustee and the Trust
Administrator resign or are removed) by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Trustee or Trust
Administrator, as applicable, and one copy to the successor Trustee or Trust
Administrator. If no successor Trustee or Trust Administrator, as applicable,
shall have been so appointed and having accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Trustee or Trust
Administrator may petition any court of competent jurisdiction for the
appointment of a successor Trustee or Trust Administrator, as
applicable.
If
the
Trust Administrator and the Master Servicer are the same entity, then at any
time the Trust Administrator resigns or is removed as Trust Administrator,
the
Master Servicer shall also be removed hereunder.
If
at any
time the Trustee or the Trust Administrator shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor (or in the case of the Trust
Administrator, the Trustee), or if at any time the Trustee or the Trust
Administrator shall be legally unable to act, or shall be adjudged bankrupt
or
insolvent, or a receiver of the Trustee or the Trust Administrator or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or the Trust Administrator or of its property or affairs for
the
purpose of rehabilitation, conservation or liquidation, then the Depositor,
the
Servicers or the Master Servicer may remove the Trustee or the Trust
Administrator, as applicable. If the Depositor, the Servicers or the Master
Servicer removes the Trustee or the Trust Administrator under the authority
of
the immediately preceding sentence, the Depositor shall promptly appoint a
successor Trustee or Trust Administrator, as applicable, by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Trustee
or
Trust Administrator so removed and one copy to the successor Trustee or Trust
Administrator.
The
Majority Certificateholders may at any time remove the Trustee or Trust
Administrator by written instrument or instruments delivered to the Servicers,
the Master Servicer, the Depositor, the Trust Administrator and the Trustee;
the
Depositor shall thereupon use its best efforts to appoint a successor trustee
in
accordance with this Section.
Any
resignation or removal of the Trustee or Trust Administrator and appointment
of
a successor Trustee or Trust Administrator pursuant to any of the provisions
of
this Section 8.07 shall not become effective until acceptance of appointment
by
the successor trustee as provided in Section 8.08.
Notwithstanding
anything to the contrary contained herein, the Master Servicer and the Trust
Administrator shall at all times be the same Person.
| SECTION 8.08 |
Successor
Trustee.
|
Any
successor Trustee or Trust Administrator appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Servicers, the
Master Servicer and to its predecessor Trustee or Trust Administrator an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee or Trust Administrator shall become
effective, and such successor Trustee or Trust Administrator, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect
as
if originally named as Trustee or Trust Administrator. The Depositor, the Master
Servicer, the Servicers and the predecessor Trustee or Trust Administrator
shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Trustee Trust Administrator all such rights, powers, duties and
obligations.
No
successor Trustee or Trust Administrator shall accept appointment as provided
in
this Section 8.08 unless at the time of such acceptance such successor Trustee
or Trust Administrator shall be eligible under the provisions of Section 8.06
and the appointment of such successor Trustee or Trust Administrator shall
not
result in a downgrading of the Regular Certificates by any Rating Agency, as
evidenced by a letter from each Rating Agency.
Upon
acceptance of appointment by a successor Trustee or Trust Administrator as
provided in this Section 8.08, the successor Trustee or Trust Administrator
shall mail notice of the appointment of a successor Trustee or Trust
Administrator hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to each Rating Agency.
Any
Person appointed as successor Trust Administrator pursuant to this Agreement
shall also be required to serve as successor supplemental interest trust trustee
under the Interest Rate Swap Agreement and
as
successor cap trustee under the Interest Rate Cap Agreement.
| SECTION 8.09 |
Merger
or Consolidation of Trustee or Trust
Administrator.
|
Any
entity into which the Trustee or the Trust Administrator may be merged or
converted or with which it may be consolidated, or any entity resulting from
any
merger, conversion or consolidation to which the Trustee or the Trust
Administrator shall be a party, or any entity succeeding to the business of
the
Trustee or Trust Administrator, shall be the successor of the Trustee or the
Trust Administrator hereunder, as applicable, provided such entity shall be
eligible under the provisions of Section 8.06 and 8.08, without the execution
or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
| SECTION 8.10 |
Appointment
of Co-Trustee or Separate Trustee.
|
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust or
any
Mortgaged Property may at the time be located, the Depositor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-Trustee or co-Trustees, jointly with the Trustee, or separate trustee or
separate Trustees, of all or any part of the Trust, and to vest in such Person
or Persons, in such capacity and for the benefit of the Certificateholders,
such
title to the Trust, or any part thereof, and, subject to the other provisions
of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicers and the Trustee may consider necessary or desirable. Any such
co-trustee or separate trustee shall be subject to the written approval of
the
related Servicer. If the related Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or
in
the case a Servicer Event of Termination shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-Trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06, and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required
under
Section 8.08. The related Servicer shall be responsible for the fees of any
co-trustee or separate trustee appointed hereunder.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
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 or co-Trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Master Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title
to
the Trust or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-Trustee, but solely at
the
direction of the Trustee;
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(iii) the
related Servicer and the Trustee, acting jointly, may at any time accept the
resignation of or remove any separate trustee or co-trustee except that
following the occurrence of a Servicer Event of Termination, the Trustee acting
alone may accept the resignation or remove any separate trustee or
co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-Trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-Trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-Trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Depositor and the related Servicer.
Any
separate trustee or co-Trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-Trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
| SECTION 8.11 |
Limitation
of Liability.
|
The
Certificates are executed by the Trust Administrator, not in its individual
capacity but solely as Trust Administrator of the Trust, in the exercise of
the
powers and authority conferred and vested in it by this Agreement. Each of
the
undertakings and agreements made on the part of the Trust Administrator in
the
Certificates is made and intended not as a personal undertaking or agreement
by
the Trust Administrator but is made and intended for the purpose of binding
only
the Trust.
| SECTION 8.12 |
Trustee
May Enforce Claims Without Possession of
Certificates.
|
(a) All
rights of action and claims under this Agreement or the Certificates may be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own name
or in
its capacity as Trustee for the benefit of all Holders of such Certificates,
subject to the provisions of this Agreement. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment
has
been recovered.
(b) The
Trustee shall afford the Seller, the Depositor, each Servicer and each
Certificateholder upon reasonable prior notice during normal business hours,
access to all records maintained by the Trustee in respect of its duties
hereunder and access to officers of the Trustee responsible for performing
such
duties. Upon request, the Trustee shall furnish the Depositor, each Servicer
and
any requesting Certificateholder with its most recent financial statements.
The
Trustee shall cooperate fully with the Seller, each Servicer, the Depositor
and
such Certificateholder and shall make available to the Seller, each Servicer,
the Depositor and such Certificateholder for review and copying such books,
documents or records as may be requested with respect to the Trustee’s duties
hereunder. The Seller, the Depositor, each Servicer and the Certificateholders
shall not have any responsibility or liability for any action or failure to
act
by the Trustee and are not obligated to supervise the performance of the Trustee
under this Agreement or otherwise.
| SECTION 8.13 |
Suits
for Enforcement.
|
In
case a
Servicer Event of Termination or other default by a Servicer or the Depositor
hereunder or under the related Servicing Agreement shall occur and be
continuing, the Trustee, shall, at the direction of the Majority
Certificateholders, or may, proceed to protect and enforce its rights and the
rights of the Certificateholders under this Agreement by a suit, action or
proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in
aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable or other remedy, as the Trustee, being advised
by
counsel, and subject to the foregoing, shall deem most effectual to protect
and
enforce any of the rights of the Trustee and the
Certificateholders.
| SECTION 8.14 |
Waiver
of Bond Requirement.
|
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee post a bond or other surety with any court, agency
or
body whatsoever.
| SECTION 8.15 |
Waiver
of Inventory, Accounting and Appraisal
Requirement.
|
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner
whatsoever.
| SECTION 8.16 |
Appointment
of the Custodians.
|
The
Trustee shall, at the direction of the Depositor and with the consent of the
Servicers, appoint the Custodians to hold all or a portion of the Mortgage
Files. The appointment of the Custodians may at any time be terminated and
a
substitute Custodian appointed therefor at the direction of the Depositor to
the
Trustee, the consent to which shall not be unreasonably withheld. Each Custodian
shall be entitled to its fees and expenses in accordance with the related
Custodial Agreement, which fees and expenses shall be paid to the related
Custodian from the Trust in accordance with Section 8.05. Subject to Article
VIII hereof, the Trustee agrees to comply with the terms of each Custodial
Agreement to which it is a party, which agreement may be amended from time
to
time, and shall have the right to enforce the terms and provisions thereof
against the related Custodian for the benefit of the Certificateholders having
an interest in any Mortgage File held by such Custodian. Notwithstanding
anything to the contrary in this Agreement, neither Custodian is an agent of
the
Trustee and in no event shall the Trustee be liable for any acts, omission,
duties, obligations, or liabilities of either Custodian. In no event shall
the
appointment of the Custodians pursuant to the Custodial Agreements diminish
the
obligations of the Trustee hereunder.
ARTICLE
IX
REMIC
ADMINISTRATION
| SECTION 9.01 |
REMIC
Administration.
|
(a) REMIC
elections as set forth in the Preliminary Statement shall be made by the Trustee
on Form 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.
(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.
(c) The
Trust
Administrator shall pay any and all expenses relating to any tax audit of any
REMIC (including, but not limited to, any professional fees or any
administrative or judicial proceedings with respect to any Trust REMIC that
involve the Internal Revenue Service or state tax authorities), including the
expense of obtaining any tax related Opinion of Counsel. The Trust Administrator
shall be entitled to reimbursement of expenses incurred pursuant to this Section
9.01(c) to the extent provided in Section 8.05.
(d) The
Trust
Administrator shall prepare, sign and file, all of the REMICs’ federal and state
tax and information returns (including Form 8811) as the direct representative
each REMIC created hereunder. The expenses of preparing and filing such returns
shall be borne by the Trust Administrator.
(e) The
Holder of the Class R Certificate at any time holding the largest Percentage
Interest thereof shall be the “tax matters person” as defined in the REMIC
Provisions (the related “Tax Matters Person”) with respect to REMIC
1,
REMIC
2
and
REMIC 3 and shall act as Tax Matters Person for each such REMIC. The Holder
of
the Class R-X Certificate at any time holding the largest Percentage Interest
thereof shall be the Tax Matters Person with respect to REMIC 4,
REMIC
5
and
REMIC 6, and shall act as Tax Matters Person for each such REMIC. The Trust
Administrator, as agent for the Tax Matters Person, 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 Trust Administrator, as agent for the
Tax Matters Person, 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 upon reasonable additional compensation and (ii) to the
Certificateholders such information or reports as are required by the Code
or
REMIC Provisions. The Trust Administrator, as agent for the Tax Matters Person,
shall represent each REMIC in any administrative or judicial proceedings
relating to an examination or audit by any governmental taxing authority,
request an administrative adjustment as to any taxable year of any REMIC, enter
into settlement agreements with any government taxing agency, extend any statute
of limitations relating to any item of any REMIC and otherwise act on behalf
of
any REMIC in relation to any tax matter involving the Trust.
(f) The
Trust
Administrator, the Master Servicer, Ocwen and the Holders of Certificates shall
not take any action or cause any REMIC to take any action necessary to create
or
maintain the status of each REMIC as a REMIC under the REMIC Provisions and
shall assist each other as necessary to create or maintain such status. None
of
the Trustee, the Trust Administrator, Ocwen or the Holder of any Residual
Certificate shall take any action, cause any REMIC created hereunder to take
any
action or fail to take (or fail to cause to be taken) any action that, under
the
REMIC Provisions, if taken or not taken, as the case may be, could (i) endanger
the status of such REMIC as a REMIC or (ii) result in the imposition of a tax
upon such REMIC (including but not limited to the tax on prohibited transactions
as defined in Code Section 860F(a)(2) and the tax on prohibited contributions
set forth on Section 860G(d) of the Code) (either such event, an “Adverse REMIC
Event”) unless the Trustee, the Trust Administrator and Ocwen have received an
Opinion of Counsel, (at the expense of the party seeking to take such action)
to
the effect that the contemplated action will not endanger such status or result
in the imposition of such a tax. In addition, prior to taking any action with
respect to any REMIC created hereunder or the assets therein, or causing such
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 Trust Administrator and Ocwen, 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
Trust Administrator or the Master Servicer has advised it in writing that an
Adverse REMIC Event could occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
each REMIC created hereunder by federal or state governmental authorities.
To
the extent that such Trust taxes are not paid by a Residual Certificateholder,
the Trust Administrator shall pay any remaining REMIC taxes out of current
or
future amounts otherwise distributable to the Holder of the Residual Certificate
in the REMICs or, if no such amounts are available, out of other amounts held
in
the Distribution Account, and shall reduce amounts otherwise payable to Holders
of regular interests in the related REMIC. Subject to the foregoing, in the
event that a REMIC incurs a state or local tax, including franchise taxes,
as a
result of a determination that such REMIC is domiciled in the State of
California for state tax purposes by virtue of the location of Ocwen, Ocwen
agrees to pay on behalf of such REMIC when due, any and all state and local
taxes imposed as a result of such a determination, in the event that the Holder
of the related Residual Certificate fails to pay such taxes, if any, when
imposed.
(h) The
Trust
Administrator, as agent for the Tax Matters Person, shall, for federal income
tax purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC created hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) None
of
the Trustee, the Trust Administrator, Ocwen or the Master Servicer shall enter
into any arrangement by which any REMIC created hereunder will receive a fee
or
other compensation for services.
(k) [Reserved].
(l) The
Trust
Administrator will apply for an Employee Identification Number from the Internal
Revenue Service via a Form SS-4 or other acceptable method for all tax entities
and shall complete the Form 8811.
| SECTION 9.02 |
Prohibited
Transactions and Activities.
|
None
of
the Depositor, Ocwen, the Master Servicer, the Trust Administrator or the
Trustee shall sell, dispose of, or substitute for any of the Mortgage Loans,
except in a disposition pursuant to (i) the foreclosure of a Mortgage Loan,
(ii)
the bankruptcy of the Trust Fund, (iii) the termination of any REMIC created
hereunder pursuant to Article X of this Agreement, (iv) a substitution pursuant
to Article II of this Agreement or (v) a repurchase of Mortgage Loans pursuant
to Article II of this Agreement, nor acquire any assets for any REMIC, nor
sell
or dispose of any investments in the Distribution Account for gain, nor accept
any contributions to either REMIC after the Closing Date, unless it has received
an Opinion of Counsel (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not (a) affect adversely the status of any REMIC created
hereunder as a REMIC or of the interests therein other than the Residual
Certificates as the regular interests therein, (b) affect the distribution
of
interest or principal on the Certificates, (c) result in the encumbrance of
the
assets transferred or assigned to the Trust Fund (except pursuant to the
provisions of this Agreement) or (d) cause any REMIC created hereunder to be
subject to a tax on prohibited transactions or prohibited contributions pursuant
to the REMIC Provisions.
| SECTION 9.03 |
Indemnification
with Respect to Certain Taxes and Loss of REMIC
Status.
|
(a) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by Ocwen of its duties and obligations set forth herein, Ocwen
shall
indemnify the Trustee, the Master Servicer, the Trust Administrator and the
Trust Fund against any and all losses, claims, damages, liabilities or expenses
(“Losses”) resulting from such negligence; provided, however, that Ocwen shall
not be liable for any such Losses attributable to the action or inaction of
the
Master Servicer, the Trustee, the Trust Administrator, the Depositor or the
Holder of such Residual Certificate, as applicable, nor for any such Losses
resulting from misinformation provided by the Holder of such Residual
Certificate on which Ocwen 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 Ocwen 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, (2) for any Losses other than arising out of a negligent performance
by Ocwen 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).
(b) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Trust Administrator of its duties and obligations set forth
herein, the Trust Administrator shall indemnify the Trust Fund against any and
all Losses resulting from such negligence; provided, however, that the Trust
Administrator shall not be liable for any such Losses attributable to the action
or inaction of Ocwen, the Depositor or the Holder of such Residual Certificate,
as applicable, nor for any such Losses resulting from misinformation provided
by
the Holder of such Residual Certificate on which the Trust 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
Trust Administrator have any liability (1) for any action or omission that
is
taken in accordance with and in compliance with the express terms of, or which
is expressly permitted by the terms of, this Agreement, (2) for any Losses
other
than arising out of a negligent performance by the Trust Administrator 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).
ARTICLE
X
TERMINATION
| SECTION 10.01 |
Termination.
|
(a) The
respective obligations and responsibilities of Ocwen, the Depositor, the Master
Servicer, the Trust Administrator and the Trustee created hereby (other than
the
obligation of the Trust
Administrator to
make
certain payments to Certificateholders after the final Distribution Date and
the
obligation of Ocwen to send certain notices as hereinafter set forth) shall
terminate upon notice to the Trust Administrator upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Terminator of the Mortgage Loans as described below and (iv) the
Distribution Date in March 2037. Notwithstanding the foregoing, in no event
shall the trust created hereby continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late
ambassador of the United States to the Court of St. James’s, living on the date
hereof.
Ocwen,
or
if Ocwen fails to exercise such option within ten (10) Business Days after
receipt of notice from the Master Servicer, the Master Servicer (in such
context, the “Terminator”), may, at its option, terminate this Agreement on any
date on which the aggregate Stated Principal Balance of the Mortgage Loans
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) on such date is equal
to or less than 10% of the aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-off Date by purchasing, on the next succeeding Distribution
Date, all of the outstanding Mortgage Loans and REO Properties at a price equal
to the greater of (i) the Stated Principal Balance of the Mortgage Loans (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and the appraised
value
of the REO Properties and (ii) fair market value of the Mortgage Loans and
REO
Properties (as determined and as agreed upon as of the close of business on
the
third Business Day next preceding the date upon which notice of any such
termination is furnished to the related Certificateholders pursuant to Section
10.01(c) by (x) the Terminator, (y) the Holders of a majority in Percentage
Interest in the Class C Certificates and (z) if the Floating Rate Certificates
will not receive all amounts owed to it as a result of the termination, the
Trust Administrator, provided that if this clause (z) applies to such
determination, such determination shall be based solely upon an appraisal
obtained as provided in the last sentence of this paragraph), plus accrued
and
unpaid interest thereon at the weighted average of the Mortgage Rates through
the end of the Due Period preceding the final Distribution Date plus
unreimbursed Servicing Advances, Advances, any unpaid Servicing Fees allocable
to such Mortgage Loans and REO Properties and any accrued and unpaid Net WAC
Rate Carryover Amounts and any Swap Termination Payment payable to the Swap
Provider (the “Termination Price”); provided, however, such option may only be
exercised if the Termination Price is sufficient to result in the payment of
all
interest accrued on, as well as amounts necessary to retire the principal
balance of, each class of notes issued pursuant to the Indenture. If the
determination of the fair market value of the Mortgage Loans and REO Properties
shall be required to be made and agreed upon by the Terminator, the Holders
of a
majority in Percentage Interest in the Class C Certificates and the Trust
Administrator as provided in (ii) above, such determination shall be based
on an
appraisal of the value of the Mortgage Loans and REO Properties conducted by
an
independent appraiser mutually agreed upon by the Terminator, the Holders of
a
majority in Percentage Interest in the Class C Certificates and the Trust
Administrator in their reasonable discretion, and (A) such appraisal shall
be
obtained at no expense to the Trustee and (B) the Trust Administrator may
conclusively rely on, and shall be protected in relying on, such
appraisal.
By
acceptance of a Residual Certificate, the Holders of the Residual Certificates
agree, in connection with any termination hereunder, to assign and transfer
any
amounts in excess of par, and to the extent received in respect of such
termination, to pay any such amounts to the Holders of the Class C
Certificates.
(a) In
connection with any termination pursuant to this Section 10.01:
(1) At
least
twenty (20) days prior to the latest date on which notice of such optional
termination is required to be mailed to the Certificateholders, the Terminator
shall notify in writing (which may be done in electronic format), the Trust
Administrator, the Master Servicer, the Swap Provider and the Trustee of the
final Distribution Date on which the Terminator intends to terminate the Trust
Fund;
(2) No
later
than 4:00 pm (New York City time) four (4) Business Days prior to the final
Distribution Date specified in the notices required pursuant to Section 10.01,
the Swap Provider shall notify in writing (in accordance with the applicable
provisions of the Interest Rate Swap Agreement) (which may be done in electronic
format) and by phone, the Terminator, the Trust Administrator, the Master
Servicer and the Trustee of the amount of the Estimated Swap Termination
Payment; and
(3) Three
(3)
Business Days prior to the final Distribution Date specified in the notices
required pursuant to Sections 10.01, (x) the Terminator shall, no
later
than 1:00 pm (New
York
City time) on such day, deliver to the Trust Administrator and the Trust
Administrator shall deposit funds in the Distribution Account in an amount
equal
to the sum of the Termination Price (which shall be based on the Estimated
Swap
Termination Payment), and (y) if the Trust Administrator shall have received
an
Officer’s Certificate stating that all of the requirements for Optional
Termination have been met, including without limitation the deposit required
pursuant to the immediately preceding clause (x) as well as the requirements
specified in Section 10.01, then the Trust Administrator shall, on the same
Business Day, provide written notice (which may be done in electronic format)
to
the Terminator and the Swap Provider (in accordance with the applicable
provision of the Interest Rate Swap Agreement) confirming (a) its receipt of
the
Termination Price (which shall be based on the Estimated Swap Termination
Payment), and (b) that all other requirements specified in Section 10.01 have
been met (the “Optional Termination Notice”). Upon the delivery of the Optional
Termination Notice by the Trust Administrator pursuant to the preceding
sentence, (i) the optional termination shall become irrevocable, (ii) the notice
to Certificateholders of such optional termination provided pursuant to Section
10.01 shall become unrescindable, (iii) the Swap Provider shall determine the
Swap Termination Payment in accordance with the Interest Rate Swap Agreement
(which shall not exceed the Estimated Swap Termination Payment), and (iv) the
Swap Provider shall provide to the Trust Administrator written notice of the
amount of the Swap Termination Payment not later than two (2) Business Days
prior to the final Distribution Date specified in the notices required pursuant
to Sections 10.01.
Upon
a
termination pursuant to this Section 10.01, the Trustee shall assign to the
Terminator each of the representations and warranties made by the Originator
and
the Seller pursuant to the Master Agreement and the Assignment Agreement,
without recourse, representation or warranty.
In
connection with any such purchase pursuant to this Section 10.01, the Terminator
shall deposit in the Distribution Account all amounts then on deposit in the
Collection Account, which deposit shall be deemed to have occurred immediately
preceding such purchase.
Any
such
purchase shall be accomplished by deposit into the Distribution Account on
the
Determination Date before such Distribution Date of the Termination
Price.
(b) Notice
of
any termination, specifying the Distribution Date (which shall be a date that
would otherwise be a Distribution Date) upon which the Certificateholders may
surrender their Certificates to the Trust Administrator for payment of the
final
distribution and cancellation, shall be given promptly by the Trust
Administrator upon the Trust Administrator receiving notice of such date from
the Terminator, by letter to the Certificateholders mailed not earlier than
the
15th
day and
not later than the 25th
day of
the month next preceding the month of such final distribution specifying (1)
the
Distribution Date upon which final distribution of the Certificates will be
made
upon presentation and surrender of such Certificates at the office or agency
of
the Trust Administrator therein designated, (2) the amount of any such final
distribution and (3) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office or agency of the
Trust Administrator therein specified.
(c) Upon
presentation and surrender of the Certificates, the Trust Administrator shall
cause to be distributed to the Holders of the Certificates on the Distribution
Date for such final distribution, in proportion to the Percentage Interests
of
their respective Class and to the extent that funds are available for such
purpose, an amount equal to the amount required to be distributed to such
Holders in accordance with the provisions of Section 4.01 for such Distribution
Date. By acceptance of the Residual Certificates, the Holders of the Residual
Certificates agree, in connection with any termination hereunder, to assign
and
transfer any amounts in excess of the par value of the Mortgage Loans, and
to
the extent received in respect of such termination, to pay any such amounts
to
the Holders of the Class C Certificates.
(d) In
the
event that all Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before such final Distribution Date, the
Trust Administrator shall promptly following such date cause all funds in the
Distribution Account not distributed in final distribution to Certificateholders
to be withdrawn therefrom and credited to the remaining Certificateholders
by
depositing such funds in a separate Servicing Account for the benefit of such
Certificateholders, and the Terminator (if the Terminator has exercised its
right to purchase the Mortgage Loans) or the Trust Administrator (in any other
case) 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 nine months after the second notice all the
Certificates shall not have been surrendered for cancellation, the Residual
Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject hereto, and the Trust Administrator upon transfer of such
funds shall be discharged of any responsibility for such funds, and the
Certificateholders shall look to the Residual Certificateholders for
payment.
| SECTION 10.02 |
Additional
Termination Requirements.
|
(a) In
the
event that the Terminator exercises its purchase option as provided in Section
10.01, each REMIC shall be terminated in accordance with the following
additional requirements, unless the Trust Administrator shall have been
furnished with an Opinion of Counsel to the effect that the failure of the
Trust
to comply with the requirements of this Section will not (i) result in the
imposition of taxes on “prohibited transactions” of the Trust as defined in
Section 860F of the Code or (ii) cause any REMIC constituting part of the Trust
Fund to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) Within
90
days prior to the final Distribution Date, the Terminator shall adopt and the
Trust Administrator shall sign a plan of complete liquidation of each REMIC
created hereunder meeting the requirements of a “Qualified Liquidation” under
Section 860F of the Code and any regulations thereunder; and
(ii) At
or
after the time of adoption of such a plan of complete liquidation and at or
prior to the final Distribution Date, the Trust Administrator shall sell all
of
the assets of the Trust Fund to the Terminator for cash pursuant to the terms
of
the plan of complete liquidation.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trust Administrator as their attorney in fact to: (i) adopt such a plan of
complete liquidation (and the Certificateholders hereby appoint the Trust
Administrator as their attorney in fact to sign such plan) as appropriate and
(ii) to take such other action in connection therewith as may be reasonably
required to carry out such plan of complete liquidation all in accordance with
the terms hereof.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
| SECTION 11.01 |
Amendment.
|
This
Agreement may be amended from time to time by the Depositor, Ocwen, the Master
Servicer, the Trust Administrator and the Trustee; and without the consent
of
the Certificateholders (i) to cure any ambiguity, (ii) to correct or supplement
any provisions herein which may be defective or inconsistent with any other
provisions herein or (iii) to make any other provisions with respect to matters
or questions arising under this Agreement which shall not be inconsistent with
the provisions of this Agreement; provided that such action shall not as
evidenced by either (a) an Opinion of Counsel delivered to Ocwen, the Master
Servicer, the Trustee and the Trust Administrator or (b) written or electronic
notice to the Depositor, Ocwen, the Master Servicer, the Trustee and the Trust
Administrator from each Rating Agency that such action 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, adversely affect in any material
respect the interests of any Certificateholder. No amendment shall be deemed
to
adversely affect in any material respect the interests of any Certificateholder
who shall have consented thereto, and no Opinion of Counsel or Rating Agency
confirmation shall be required to address the effect of any such amendment
on
any such consenting Certificateholder.
In
addition, this Agreement may be amended from time to time by the Depositor,
Ocwen, the Master Servicer, the Trust Administrator and the Trustee with the
consent of the Majority Certificateholders 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 Swap Provider
or
the Holders of Certificates; provided, however, that no such amendment or waiver
shall (x) reduce in any manner the amount of, or delay the timing of, payments
on the Certificates or distributions which are required to be made on any
Certificate without the consent of the Holder of such Certificate, (y) adversely
affect in any material respect the interests of the Swap Provider or the Holders
of any Class of Certificates (as evidenced by either (i) an Opinion of Counsel
delivered to the Trustee or (ii) written notice to the Depositor, Ocwen, the
Master Servicer and the Trustee from each Rating Agency that such action 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) in a manner other
than as described in clause (x) above, without the consent of the Holders of
Certificates of such Class evidencing at least a 66% Percentage Interest in
such
Class, or (z) reduce the percentage of Voting Rights required by clause (y)
above without the consent of the Holders of all Certificates of such Class
then
outstanding. Upon approval of an amendment, a copy of such amendment shall
be
sent to the Rating Agencies.
Notwithstanding
any provision of this Agreement to the contrary, the Trustee and the Trust
Administrator shall not consent to any amendment to this Agreement unless it
shall have first received an Opinion of Counsel, delivered by (and at the
expense of) the Person seeking such Amendment, to the effect that such amendment
will not result in the imposition of a tax on any REMIC created hereunder
constituting part of the Trust Fund pursuant to the REMIC Provisions or cause
any REMIC created hereunder constituting part of the Trust to fail to qualify
as
a REMIC at any time that any Certificates are outstanding and that the amendment
is being made in accordance with the terms hereof.
Notwithstanding
any of the other provisions of this Section 11.01, none of the parties to this
Agreement shall enter into any amendment to this Agreement that could reasonably
be expected to have a material adverse effect on the interests of the Swap
Provider hereunder (excluding, for the avoidance of doubt, any amendment to
this
Agreement that is entered into solely for the purpose of appointing a successor
servicer or trustee) without the prior written consent of the Swap Provider,
which consent shall not be unreasonably withheld, conditioned or
delayed.
Promptly
after the execution of any such amendment the Trust Administrator shall furnish,
at the expense of the Person that requested the amendment if such Person is
Ocwen (but in no event at the expense of the Trustee or the Trust
Administrator), otherwise at the expense of the Trust, a copy of such amendment
and the Opinion of Counsel referred to in the immediately preceding paragraph
to
Ocwen and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section 11.01
to approve the particular form of any proposed amendment; instead it shall
be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trust Administrator may prescribe.
The
Trustee and the Trust Administrator may, but neither shall be obligated to,
enter into any amendment pursuant to this Section 11.01 that affects its rights,
duties and immunities under this Agreement or otherwise.
| SECTION 11.02 |
Recordation
of Agreement; Counterparts.
|
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by Ocwen at the expense of the
Trust, but only upon direction of the Certificateholders accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
| SECTION 11.03 |
Limitation
on Rights of Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate this
Agreement or the Trust, (ii) entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Except
as
expressly provided for herein, no Certificateholder shall have any right to
vote
or in any manner otherwise control the operation and management of the Trust,
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.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee for 15 days after its receipt
of
such notice, request and offer of indemnity, shall have neglected or refused
to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, which priority or preference is not otherwise provided
for herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this
Section 11.03 each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
| SECTION 11.04 |
Governing
Law; Jurisdiction.
|
This
Agreement shall be construed in accordance with the laws of the State of New
York, and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws. With respect to any claim arising
out
of this Agreement, each party irrevocably submits to the exclusive jurisdiction
of the courts of the State of New York and the United States District Court
located in the Borough of Manhattan in The City of New York, and each party
irrevocably waives any objection which it may have at any time to the laying
of
venue of any suit, action or proceeding arising out of or relating hereto
brought in any such courts, irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum and further irrevocably waives the right to object, with
respect to such claim, suit, action or proceeding brought in any such court,
that such court does not have jurisdiction over such party, provided that
service of process has been made by any lawful means.
| SECTION 11.05 |
Notices.
|
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, by facsimile or by express delivery service, to
(a)
in the case of Ocwen as Servicer, Ocwen Loan Servicing, LLC, 1675 Palm Beach
Xxxxx Xxxxxxxxx, Xxxxx 00X, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attention: Secretary
(telecopy number: (000) 000-0000), or such other address or telecopy number
as
may hereafter be furnished to the Depositor, the Master Servicer, the Trust
Administrator and the Trustee in writing, (b) ) in the case of the Trustee,
Deutsche Bank National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000-0000, Attention: Trust Admin—GC07S1 (telecopy number: (000)
000-0000), or such other address or telecopy number as may hereafter be
furnished to the Depositor, Ocwen, the Trust Administrator and the Master
Servicer in writing by the Trustee, or such other address or telecopy number
as
may hereafter be furnished to the Master Servicer and the Depositor in writing
by the Trustee, (c) in the case of the Credit Risk Manager, 0000 Xxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attention: General Counsel, or such other
address or telecopy number as may hereafter be furnished to the Depositor,
Ocwen, the Trust Administrator and the Master Servicer, (d) in the case of
the
Master Servicer or the Trust Administrator, Xxxxx Fargo Bank, N.A., X.X. Xxx
00,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Soundview 2007-1 (telecopy number (000)
000-0000), with a copy to Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Soundview 2007-1 (telecopy number (000)
000-0000), and for certificate transfer purposes, with a copy to Xxxxx Fargo
Bank, N.A., Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Soundview 2007-1, or such other address or telecopy number as may
hereafter be furnished to Ocwen, the Trustee and the Depositor in writing by
the
Master Servicer and (e) in the case of the Depositor, Financial Asset Securities
Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Legal,
or
such other address or telecopy number as may hereafter be furnished to Ocwen,
the Master Servicer, the Trust Administrator and the Trustee in writing by
the
Depositor. Any notice required or permitted to be mailed to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Notice of a Servicer Event of
Termination shall be given by telecopy and by certified mail. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have duly been given when mailed, whether or not the
Certificateholder receives such notice. A copy of any notice required to be
telecopied hereunder shall also be mailed to the appropriate party in the manner
set forth above.
| SECTION 11.06 |
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
| SECTION 11.07 |
Article
and Section References.
|
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
| SECTION 11.08 |
Notice
to the Rating Agencies.
|
(a) Each
of
the Trustee, the Trust Administrator, the Master Servicer and Ocwen shall be
obligated to use its best reasonable efforts promptly to provide notice to
the
Rating Agencies with respect to each of the following of which a Responsible
Officer of the Trust Administrator, the Master Servicer or Ocwen, as the case
may be, has actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Servicer Event of Termination or Master Servicer Event of
Termination that has not been cured or waived;
(iii) the
resignation or termination of Master Servicer, the Trust Administrator or the
Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class;
(v) any
change in the location of any Account; and
(vi) if
the
Trustee is acting as successor Servicer pursuant to Section 7.02 hereof, any
event that would result in the inability of the Trustee to make
Advances.
(b) In
addition, the Trust Administrator shall promptly make available to each Rating
Agency copies of each Statement to Certificateholders described in Section
4.03
hereof and copies of the following:
(i) each
annual statement as to compliance described in Section 3.20 hereof;
(ii) each
Attestation Report described in Section 3.21 hereof; and
(i) each
notice delivered pursuant to Section 7.01(a) hereof which relates to the fact
that the Servicer has not made an Advance.
Any
such
notice pursuant to this Section 11.08 shall be in writing and shall be deemed
to
have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to (i) Xxxxx’x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) Standard
& Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., 00
Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance
Group.
| SECTION 11.09 |
Further
Assurances.
|
Notwithstanding
any other provision of this Agreement, neither the Regular Certificateholders
nor the Trustee shall have any obligation to consent to any amendment or
modification of this Agreement unless they have been provided reasonable
security or indemnity against their out-of-pocket expenses (including reasonable
attorneys’ fees) to be incurred in connection therewith.
| SECTION 11.10 |
Benefits
of Agreement.
|
Each
of
the Swap Provider and the Cap Provider shall be an express third party
beneficiary of this Agreement as if a party hereto to the extent of Swap
Provider's and Cap Provider’s rights, respectively, as are explicitly specified
herein.
Other
than as set forth above, nothing in this Agreement or in the Certificates,
expressed or implied, shall give to any Person, other than the
Certificateholders and the parties hereto and their successors hereunder, any
benefit or any legal or equitable right, remedy or claim under this
Agreement.
| SECTION 11.11 |
Acts
of Certificateholders.
|
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee and Ocwen. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “act” of the Certificateholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Agreement and conclusive in favor of the Trustee and the Trust,
if made in the manner provided in this Section 11.11.
(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
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by any Certificateholder shall bind every future Holder of such
Certificate and the Holder of every Certificate issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Trust in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
| SECTION 11.12 |
Intention
of the Parties and Interpretation.
|
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.20, 3.21
and 4.05 of this Agreement is to facilitate compliance by
the Depositor with the provisions of Regulation AB promulgated by the SEC
under the 1934 Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended
from time to time and subject to clarification and interpretive advice as may
be
issued by the staff of the SEC 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 that purpose, (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, (c)
the
parties shall comply, with requests made by the Depositor for delivery of
additional or different information as the Depositor may determine in good
faith is necessary to comply with the provisions of Regulation AB, and (d)
no
amendment of this Agreement shall be required to effect any such changes in
the
parties’ obligations as are necessary to accommodate evolving interpretations of
the provisions of Regulation AB.
IN
WITNESS WHEREOF, the Depositor, Ocwen, the Master Servicer and Trust
Administrator and the Trustee have caused their names to be signed hereto by
their respective officers thereunto duly authorized, in each case as of the
day
and year first above written.
|
FINANCIAL
ASSET SECURITIES CORP.,
as
Depositor
|
|||||||||||||
|
By:
|
/s/
Xxx Xxxxxxxxxx
|
||||||||||||
|
Name:
|
Xxx
Xxxxxxxxxx
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
|
OCWEN
LOAN SERVICING, LLC, as Servicer
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx Xxxxxxx
|
||||||||||||
|
Name:
|
Xxxxxxx
Xxxxxxx
|
||||||||||||
|
Title:
|
Authorized
Representative
|
||||||||||||
|
XXXXX
FARGO BANK, N.A.,
as
Master Servicer and Trust Administrator
|
|||||||||||||
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
||||||||||||
|
Name:
|
Xxxxxx
Xxxxxxx
|
||||||||||||
|
Title:
|
Assistant
Vice President
|
||||||||||||
|
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
||||||||||||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
|
By:
|
/s/
Xxxxxx Xxxxx
|
||||||||||||
|
Name:
|
Xxxxxx
Xxxxx
|
||||||||||||
|
Title:
|
Authorized
Signer
|
||||||||||||
For
purposes of Sections 6.09, 6.10 and 6.11:
XXXXXXX
FIXED INCOME SERVICES INC.
|
By:
|
/s/
Xxxx Xxxxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxxxx
|
||
|
Title:
|
Authorized
Representative
|
||
|
STATE
OF CONNECTICUT
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF FAIRFIELD
|
)
|
On
the
_____ day of February 2007 before me, a notary public in and for said State,
personally appeared _________________________ known to me to be
_______________________ of Financial Asset Securities Corp., a Delaware
corporation that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
_____ day of, February 2007 before me, a notary public in and for said State,
personally appeared ____________________________ known to me to be a
___________________________ of Ocwen Loan Servicing, LLC, a Delaware limited
liability company that executed the within instrument, and also known to me
to
be the person who executed it on behalf of said company, and acknowledged to
me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
_____ day of, February 2007 before me, a notary public in and for said State,
personally appeared ____________________________ known to me to be a
___________________________ of Xxxxx Fargo Bank, N.A., a national banking
association that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
____ day of February 2007 before me, a notary public in and for said State,
personally appeared _________________________, known to me to be a(n)
_______________________ and _________________________, known to me to be a(n)
_______________________of Deutsche Bank National Trust Company, a national
banking association that executed the within instrument, and also known to
me to
be the person who executed it on behalf of said association, and acknowledged
to
me that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
EXHIBIT
A-1
FORM
OF
CLASS I-A-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY PERSON ACQUIRING
A
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS IN SECTION 5.02(D)
OF THE POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$
227,948,000
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$
227,948,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
I-A-1
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Asset-Backed
Certificates,
Series
2007-1
CLASS
I-A-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class I-A-1 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class I-A-1 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class I-A-1 Certificate (obtained by dividing the Denomination
of this Class I-A-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class I-A-1 Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
I-A-1 Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Prior
to
the termination of the Supplemental Interest Trust, any person acquiring
a
Certificate shall be deemed to have made the representations in Section 5.02(d)
of the Agreement.
Reference
is hereby made to the further provisions of this Class I-A-1 Certificate
set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class I-A-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of
Xxxxx
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class I-A-1Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-2
FORM
OF
CLASS II-A-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY PERSON ACQUIRING
A
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS IN SECTION 5.02(D)
OF THE POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$145,600,000
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$145,600,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
II-A-1
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
II-A-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-1 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-1 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-1 Certificate (obtained by dividing the
Denomination of this Class II-A-1 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of February 1, 2007 (the “Agreement”) among the
Depositor, Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo
Bank, N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class II-A-1 Certificate is issued under and is subject to
the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder
of this Class II-A-1 Certificate by virtue of the acceptance hereof assents
and
by which such Holder is bound.
Prior
to
the termination of the Supplemental Interest Trust, any person acquiring
a
Certificate shall be deemed to have made the representations in Section 5.02(d)
of the Agreement.
Reference
is hereby made to the further provisions of this Class II-A-1 Certificate
set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-1 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of
Xxxxx
Fargo Bank, N.A.,
as
Trust Administrator
|
|||
[Reverse
of Class II-A-1Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-3
FORM
OF
CLASS II-A-2 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY PERSON ACQUIRING
A
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS IN SECTION 5.02(D)
OF THE POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$25,560,000
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$25,560,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
II-A-2
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
II-A-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-2 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-2 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-2 Certificate (obtained by dividing the
Denomination of this Class II-A-2 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of February 1, 2007 (the “Agreement”) among the
Depositor, Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo
Bank, N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class II-A-2 Certificate is issued under and is subject to
the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder
of this Class II-A-2 Certificate by virtue of the acceptance hereof assents
and
by which such Holder is bound.
Prior
to
the termination of the Supplemental Interest Trust, any person acquiring
a
Certificate shall be deemed to have made the representations in Section 5.02(d)
of the Agreement.
Reference
is hereby made to the further provisions of this Class II-A-2 Certificate
set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-2 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class II-A-2Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-4
FORM
OF
CLASS II-A-3 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY PERSON ACQUIRING
A
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS IN SECTION 5.02(D)
OF THE POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$77,370,000
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$77,370,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
II-A-3
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
II-A-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-3 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-3 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-3 Certificate (obtained by dividing the
Denomination of this Class II-A-3 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of February 1, 2007 (the “Agreement”) among the
Depositor, Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo
Bank, N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class II-A-3 Certificate is issued under and is subject to
the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder
of this Class II-A-3 Certificate by virtue of the acceptance hereof assents
and
by which such Holder is bound.
Prior
to
the termination of the Supplemental Interest Trust, any person acquiring
a
Certificate shall be deemed to have made the representations in Section 5.02(d)
of the Agreement.
Reference
is hereby made to the further provisions of this Class II-A-3 Certificate
set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-3 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class II-A-3Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-5
FORM
OF
CLASS II-A-4 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY PERSON ACQUIRING
A
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS IN SECTION 5.02(D)
OF THE POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$29,764,000
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$29,764,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
II-A-4
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
II-A-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-4 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-4 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-4 Certificate (obtained by dividing the
Denomination of this Class II-A-4 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of February 1, 2007 (the “Agreement”) among the
Depositor, Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo
Bank, N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class II-A-4 Certificate is issued under and is subject to
the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder
of this Class II-A-4 Certificate by virtue of the acceptance hereof assents
and
by which such Holder is bound.
Prior
to
the termination of the Supplemental Interest Trust, any person acquiring
a
Certificate shall be deemed to have made the representations in Section 5.02(d)
of the Agreement.
Reference
is hereby made to the further provisions of this Class II-A-4 Certificate
set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-4 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class II-A-4 Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-6
FORM
OF
CLASS M-1 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES TO THE EXTENT DESCRIBED
IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$20,476,000
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$20,476,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
M-1
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
M-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-1 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-1 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-1 Certificate (obtained by dividing the Denomination
of this Class M-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class M-1 Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
M-1
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-1 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class M-1 Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-7
FORM
OF
CLASS M-2 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND CLASS M-1 CERTIFICATES
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$18,586,000
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$18,586,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
M-2
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
M-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-2 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-2 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-2 Certificate (obtained by dividing the Denomination
of this Class M-2 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class M-2 Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
M-2
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-2 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-2 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class M-2 Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-8
FORM
OF
CLASS M-3 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS M-1
CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$10,711,000
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$10,711,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
M-3
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
M-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-3 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-3 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-3 Certificate (obtained by dividing the Denomination
of this Class M-3 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class M-3 Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
M-3
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-3 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-3 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class M-3 Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-9
FORM
OF
CLASS M-4 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3 CERTIFICATES TO
THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$9,766,000
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$9,766,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
M-4
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
M-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-4 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-4 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-4 Certificate (obtained by dividing the Denomination
of this Class M-4 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class M-4 Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
M-4
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-4 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-4 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class M-4 Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-10
FORM
OF
CLASS M-5 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES AND
THE
CLASS M-4 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$9,136,000
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$9,136,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
M-5
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
M-5
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-5 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-5 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-5 Certificate (obtained by dividing the Denomination
of this Class M-5 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class M-5 Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
M-5
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-5 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-5 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[REVERSE
OF CLASS M-5 CERTIFICATE]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-11
FORM
OF
CLASS M-6 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES AND THE CLASS M-5 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$8,506,000
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$8,506,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
M-6
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
M-6
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-6 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-6 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-6 Certificate (obtained by dividing the Denomination
of this Class M-6 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class M-6 Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
M-6
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-6 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-6 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class M-6 Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-12
FORM
OF
CLASS M-7 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES AND THE CLASS M-6 CERTIFICATES
TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$8,191,000
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$8,191,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
M-7
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
M-7
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-7 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-7 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-7 Certificate (obtained by dividing the Denomination
of this Class M-7 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class M-7 Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
M-7
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-7 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-7 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class M-7 Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-13
FORM
OF
CLASS M-8A CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES
AND THE
CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$4,300,000
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$4,300,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
M-8A
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
M-8A
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-8A Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-8A Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-8A Certificate (obtained by dividing the Denomination
of this Class M-8A Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class M-8A Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
M-8A Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-8A Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class M-8A Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class M-8A Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-14
FORM
OF
CLASS M-8B CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES
AND THE
CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$2,000,000
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$2,000,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
83612P
AV2
|
|
Class
|
:
|
M-8B
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
M-8B
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-8B Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-8B Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-8B Certificate (obtained by dividing the Denomination
of this Class M-8B Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class M-8B Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
M-8B Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-8B Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class M-8B Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class M-8B Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
|
I
(We) further direct the Trust Administrator to issue a new Certificate
of
a like denomination and Class, to the above named assignee and
deliver
such Certificate to the following address:______
|
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-15
FORM
OF
CLASS M-9 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES,
THE
CLASS M-7 CERTIFICATES AND THE M-8 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$5,985,000
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$5,985,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
M-9
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
M-9
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-9 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-9 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-9 Certificate (obtained by dividing the Denomination
of this Class M-9 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class M-9 Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
M-9
Certificate by virtue of the acceptance hereof assents and by which such
Holder
is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-9 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-9 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class M-9 Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
______________________________________________________________________________
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-16
FORM
OF
CLASS M-10 CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS THE
M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES,
THE
CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES AND THE CLASS M-9
CERTIFICATES,
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$6,300,000
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$6,300,000
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
M-10
|
|
Assumed
Maturity Date
|
:
|
March
2037
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
M-10
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-10 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-10 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-10 Certificate (obtained by dividing the Denomination
of this Class M-10 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of February 1, 2007 (the “Agreement”) among the Depositor,
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Class M-10 Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement, to which Agreement the Holder of this Class
M-10 Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-10 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class M-10 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class M-10 Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-17
FORM
OF
CLASS C CERTIFICATES
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE MEZZANINE
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Notional Amount
of
this Certificate (“Denomination”)
|
:
|
$19,846,089.69
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$19,846,089.69
|
|
Percentage
Interest
|
:
|
100.00%
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
C
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
C
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class C Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class C Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer, the Master Servicer, the Trust Administrator or the Trustee referred
to below or any of their respective affiliates.
This
certifies that Greenwich Capital Financial Products, Inc. is the registered
owner of the Percentage Interest evidenced by this Class C Certificate (obtained
by dividing the Denomination of this Class C Certificate by the Original
Class
Certificate Principal Balance) in certain distributions with respect to a
Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of February 1, 2007 (the “Agreement”) among the
Depositor, Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo
Bank, N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class C Certificate is issued under and is subject to the
terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Class C Certificate by virtue of the acceptance hereof assents and by
which
such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be
made
pursuant to Rule 144A of the Act, there shall be delivered to the Trust
Administrator and the Depositor of an Opinion of Counsel that such transfer
may
be made pursuant to an exemption from the Act, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Servicer, the Master
Servicer, the Trust Administrator or the Depositor; or there shall be delivered
to the Trust Administrator and the Depositor a transferor certificate by
the
transferor and an investment letter shall be executed by the transferee.
The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trust Administrator and the Depositor against any liability
that
may result if the transfer is not so exempt or is not made in accordance
with
such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class C Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class C Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class C Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-18
FORM
OF
CLASS P CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$100.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$100.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
P
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
P
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class P Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class P Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer, the Master Servicer, the Trust Administrator or the Trustee referred
to below or any of their respective affiliates.
This
certifies that Greenwich Capital Financial Products, Inc. is the registered
owner of the Percentage Interest evidenced by this Class P Certificate (obtained
by dividing the Denomination of this Class P Certificate by the Original
Class
Certificate Principal Balance) in certain distributions with respect to a
Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of February 1, 2007 (the “Agreement”) among the
Depositor, Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo
Bank, N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Class P Certificate is issued under and is subject to the
terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Class P Certificate by virtue of the acceptance hereof assents and by
which
such Holder is bound.
This
Certificate does not have a pass-through rate and will be entitled to
distributions only to the extent set forth in the Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be
made
pursuant to Rule 144A of the Act, there shall be delivered to the Trust
Administrator and the Depositor of an Opinion of Counsel that such transfer
may
be made pursuant to an exemption from the Act, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Servicer, the Master
Servicer, the Trust Administrator or the Depositor; or there shall be delivered
to the Trust Administrator and the Depositor a transferor certificate by
the
transferor and an investment letter shall be executed by the transferee. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trust Administrator and the Depositor against any liability
that
may result if the transfer is not so exempt or is not made in accordance
with
such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class P Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class P Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class P Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-19
FORM
OF
CLASS R CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Percentage
Interest
|
:
|
100%
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
R
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
R
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator or the Trustee referred to below or any of their respective
affiliates.
This
certifies that Greenwich Capital Markets, Inc. is the registered owner of
the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Financial Asset Securities Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of February 1, 2007
(the
“Agreement”) among the Depositor, Ocwen Loan Servicing, LLC as servicer (the
“Servicer”), Xxxxx Fargo Bank, N.A. as master servicer and trust administrator
(the “Master Servicer” and “Trust Administrator”), and Deutsche Bank National
Trust Company, a national banking association, as trustee (the “Trustee”). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement.
In
addition, any distribution of the proceeds of any remaining assets of the
Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trust
Administrator.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be
made
pursuant to Rule 144A of the Act, there shall be delivered to the Trust
Administrator and the Depositor of an Opinion of Counsel that such transfer
may
be made pursuant to an exemption from the Act, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Servicer, the Master
Servicer, the Trust Administrator or the Depositor; or there shall be delivered
to the Trust Administrator and the Depositor a transferor certificate by
the
transferor and an investment letter shall be executed by the transferee.
The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trust Administrator and the Depositor against any liability
that
may result if the transfer is not so exempt or is not made in accordance
with
such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in
this
Certificate may be transferred without delivery to the Trust Administrator
of
(a) a transfer affidavit of the proposed transferee and (b) a transfer
certificate of the transferor, each of such documents to be in the form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Certificate must agree to require a transfer affidavit and
to
deliver a transfer certificate to the Trust Administrator as required pursuant
to the Agreement, (iv) each person holding or acquiring an Ownership Interest
in
this Certificate must agree not to transfer an Ownership Interest in this
Certificate if it has actual knowledge that the proposed transferee is not
a
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions
will be
absolutely null and void and will vest no rights in the purported transferee.
Pursuant to the Agreement, The Trust Administrator will provide the Internal
Revenue Service and any pertinent persons with the information needed to
compute
the tax imposed under the applicable tax laws on transfers of residual interests
to disqualified organizations, if any person other than a Permitted Transferee
acquires an Ownership Interest on a Class R Certificate in violation of the
restrictions mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of
the
Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class R Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1 Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-20
FORM
OF
CLASS R-X CERTIFICATES
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R-X CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Percentage
Interest
|
:
|
100.00%
|
|
CUSIP
|
:
|
00000XXX0
|
|
Class
|
:
|
R-X
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
R-X
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator or the Trustee referred to below or any of their respective
affiliates.
This
certifies that Greenwich Capital Markets, Inc. is the registered owner of
the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Financial Asset Securities Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of February 1, 2007
(the
“Agreement”) among the Depositor, Ocwen Loan Servicing, LLC as servicer (the
“Servicer”), Xxxxx Fargo Bank, N.A. as master servicer and trust administrator
(the “Master Servicer” and “Trust Administrator”), and Deutsche Bank National
Trust Company, a national banking association, as trustee (the “Trustee”). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement.
In
addition, any distribution of the proceeds of any remaining assets of the
Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trust
Administrator.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be
made
pursuant to Rule 144A of the Act, there shall be delivered to the Trust
Administrator and the Depositor of an Opinion of Counsel that such transfer
may
be made pursuant to an exemption from the Act, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Servicer, the Master
Servicer, the Trust Administrator or the Depositor; or there shall be delivered
to the Trust Administrator and the Depositor a transferor certificate by
the
transferor and an investment letter shall be executed by the transferee.
The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trust Administrator and the Depositor against any liability
that
may result if the transfer is not so exempt or is not made in accordance
with
such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in
this
Certificate may be transferred without delivery to the Trust Administrator
of
(a) a transfer affidavit of the proposed transferee and (b) a transfer
certificate of the transferor, each of such documents to be in the form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Certificate must agree to require a transfer affidavit and
to
deliver a transfer certificate to the Trust Administrator as required pursuant
to the Agreement, (iv) each person holding or acquiring an Ownership Interest
in
this Certificate must agree not to transfer an Ownership Interest in this
Certificate if it has actual knowledge that the proposed transferee is not
a
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions
will be
absolutely null and void and will vest no rights in the purported transferee.
Pursuant to the Agreement, the Trust Administrator will provide the Internal
Revenue Service and any pertinent persons with the information needed to
compute
the tax imposed under the applicable tax laws on transfers of residual interests
to disqualified organizations, if any person other than a Permitted Transferee
acquires an Ownership Interest on a Class R-X Certificate in violation of
the
restrictions mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of
the
Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class R-X Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
Account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
Assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-21
FORM
OF
CLASS X CERTIFICATES
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS X CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
X
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
X
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator or the Trustee referred to below or any of their respective
affiliates.
This
certifies that Greenwich Capital Markets, Inc. is the registered owner of
the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Financial Asset Securities Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of February 1, 2007
(the
“Agreement”) among the Depositor, Ocwen Loan Servicing, LLC as servicer (the
“Servicer”), Xxxxx Fargo Bank, N.A. as master servicer and trust administrator
(the “Master Servicer” and “Trust Administrator”), and Deutsche Bank National
Trust Company, a national banking association, as trustee (the “Trustee”). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement.
In
addition, any distribution of the proceeds of any remaining assets of the
Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trust
Administrator.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be
made
pursuant to Rule 144A of the Act, there shall be delivered to the Trust
Administrator and the Depositor of an Opinion of Counsel that such transfer
may
be made pursuant to an exemption from the Act, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Servicer, the Master
Servicer, the Trust Administrator or the Depositor; or there shall be delivered
to the Trust Administrator and the Depositor a transferor certificate by
the
transferor and an investment letter shall be executed by the transferee.
The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trust Administrator and the Depositor against any liability
that
may result if the transfer is not so exempt or is not made in accordance
with
such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in
this
Certificate may be transferred without delivery to the Trust Administrator
of
(a) a transfer affidavit of the proposed transferee and (b) a transfer
certificate of the transferor, each of such documents to be in the form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Certificate must agree to require a transfer affidavit and
to
deliver a transfer certificate to the Trust Administrator as required pursuant
to the Agreement, (iv) each person holding or acquiring an Ownership Interest
in
this Certificate must agree not to transfer an Ownership Interest in this
Certificate if it has actual knowledge that the proposed transferee is not
a
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions
will be
absolutely null and void and will vest no rights in the purported transferee.
Pursuant to the Agreement, the Trust Administrator will provide the Internal
Revenue Service and any pertinent persons with the information needed to
compute
the tax imposed under the applicable tax laws on transfers of residual interests
to disqualified organizations, if any person other than a Permitted Transferee
acquires an Ownership Interest on a Class X Certificate in violation of the
restrictions mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of
the
Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class X Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee and of Holders of the requisite percentage
of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
Account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
Assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-22
FORM
OF
CLASS FL CERTIFICATES
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS FL CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
February
1, 2007
|
|
First
Distribution Date
|
:
|
March
26, 2007
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
FL
|
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
Series
2007-1
CLASS
FL
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first
and
second lien, fixed-rate and adjustable-rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Servicer, the Master Servicer, the Trustee
or
the Trust Administrator referred to below or any of their respective
affiliates.
This
certifies that Greenwich Capital Financial Products, Inc. is the registered
owner of the Percentage Interest evidenced by this Certificate specified
above
in the interest represented by all Certificates of the Class to which this
Certificate belongs in a Trust consisting primarily of the Mortgage Loans
deposited by Financial Asset Securities Corp. (the “Depositor”). The Trust was
created pursuant to a Pooling and Servicing Agreement dated as of February
1,
2007 (the “Agreement”) among the Depositor, Ocwen Loan Servicing, LLC as
servicer (the “Servicer”), Xxxxx Fargo Bank, N.A. as master servicer and trust
administrator (the “Master Servicer” and “Trust Administrator”), and Deutsche
Bank National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement,
to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement.
In
addition, any distribution of the proceeds of any remaining assets of the
Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trust
Administrator.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to
effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be
made
pursuant to Rule 144A of the Act, there shall be delivered to the Trust
Administrator and the Depositor of an Opinion of Counsel that such transfer
may
be made pursuant to an exemption from the Act, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Servicer, the Master
Servicer, the Trust Administrator or the Depositor; or there shall be delivered
to the Trust Administrator and the Depositor a transferor certificate by
the
transferor and an investment letter shall be executed by the transferee.
The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trust Administrator and the Depositor against any liability
that
may result if the transfer is not so exempt or is not made in accordance
with
such federal and state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in
this
Certificate may be transferred without delivery to the Trust Administrator
of
(a) a transfer affidavit of the proposed transferee and (b) a transfer
certificate of the transferor, each of such documents to be in the form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Certificate must agree to require a transfer affidavit and
to
deliver a transfer certificate to the Trust Administrator as required pursuant
to the Agreement, (iv) each person holding or acquiring an Ownership Interest
in
this Certificate must agree not to transfer an Ownership Interest in this
Certificate if it has actual knowledge that the proposed transferee is not
a
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions
will be
absolutely null and void and will vest no rights in the purported transferee.
Pursuant to the Agreement, the Trust Administrator will provide the Internal
Revenue Service and any pertinent persons with the information needed to
compute
the tax imposed under the applicable tax laws on transfers of residual interests
to disqualified organizations, if any person other than a Permitted Transferee
acquires an Ownership Interest on a Class FL Certificate in violation of
the
restrictions mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of
the
Trust Administrator.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly
executed.
Dated:
February __, 2007
|
SOUNDVIEW
HOME LOAN TRUST 2007-1
|
|
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator
|
|
|
By:
|
|
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|||
|
By:
|
|||
|
Authorized
Signatory of Xxxxx Fargo Bank, N.A., as Trust Administrator
|
|||
[Reverse
of Class FL Certificate]
Soundview
Home Loan Trust 2007-1
Asset-Backed
Certificates,
SERIES
2007-1
This
Certificate is one of a duly authorized issue of Certificates designated
as
Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series 2007-1
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business
Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs
on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register
or by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trust
Administrator and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Servicer, the Master Servicer, the Trustee
and
the Trust Administrator and of Holders of the requisite percentage of the
Percentage Interests of each Class of Certificates affected by such amendment,
as specified in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation
of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trust Administrator as provided
in
the Pooling and Servicing Agreement accompanied by a written instrument of
transfer in form satisfactory to the Trust Administrator and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee and any agent of the Depositor, the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Trustee, the Servicer, the Master Servicer, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trust Administrator upon the earliest of (i)
the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Servicer of the Mortgage Loans as described in the Agreement and (iv)
the
Distribution Date in March 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trust Administrator to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
Account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
Assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
B
[RESERVED]
EXHIBIT
C-1
FORM
OF
MORTGAGE LOAN PURCHASE AGREEMENT
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.,
as
Seller
and
FINANCIAL
ASSET SECURITIES CORP.,
as
Purchaser
MORTGAGE
LOAN PURCHASE AGREEMENT
Dated
as
of February 23, 2007
Adjustable-Rate
and Fixed-Rate Mortgage Loans
Soundview
Home Loan Trust 2007-1
Table
of Contents
|
ARTICLE
I
DEFINITIONS
|
|
|
Section
1.01
|
Definitions
|
|
ARTICLE
II
SALE
OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
|
|
|
Section
2.01
|
Sale
of Mortgage Loans
|
|
Section
2.02
|
Obligations
of the Seller and Seller Upon Sale
|
|
Section
2.03
|
Payment
of Purchase Price for the Mortgage Loans.
|
|
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
|
|
|
Section
3.01
|
Seller
Representations and Warranties Relating to the Mortgage
Loans.
|
|
Section
3.02
|
Seller
Representations and Warranties Relating to the Seller
|
|
Section
3.03
|
Remedies
for Breach of Representations and Warranties
|
|
ARTICLE
IV
SELLER’S
COVENANTS
|
|
|
Section
4.01
|
Covenants
of the Seller
|
|
ARTICLE
V
INDEMNIFICATION
WITH RESPECT TO THE MORTGAGE LOANS
|
|
|
Section
5.01
|
Indemnification.
|
|
ARTICLE
VI
TERMINATION
|
|
|
Section
6.01
|
Termination
|
|
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
|
|
|
Section
7.01
|
Amendment
|
|
Section
7.02
|
Governing
Law
|
|
Section
7.03
|
Notices
|
|
Section
7.04
|
Severability
of Provisions
|
|
Section
7.05
|
Counterparts
|
|
Section
7.06
|
Further
Agreements
|
|
Section
7.07
|
Intention
of the Parties
|
|
Section
7.08
|
Successors
and Assigns; Assignment of Purchase Agreement
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Section
7.09
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Survival
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EXHIBIT
1
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List
of Servicing Agreements
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MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of February 23, 2007 (the “Agreement”),
between Greenwich Capital Financial Products, Inc. (the “Seller” or “GCFP”) and
Financial Asset Securities Corp. (the “Purchaser” or “FASCO”).
WITNESSETH
WHEREAS,
the Seller is the owner of (a) the notes or other evidence of indebtedness
(the
“Mortgage Notes”) so indicated on Schedule I hereto referred to below and (b)
the other documents or instruments constituting the Mortgage File (collectively,
the “Mortgage Loans”); and
WHEREAS,
the Seller, as of the date hereof, owns the mortgages (the “Mortgages”) on the
properties (the “Mortgaged Properties”) securing such Mortgage Loans, including
rights to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise and (b) the proceeds of any insurance policies
covering
the Mortgage Loans or the Mortgaged Properties or the obligors on the Mortgage
Loans; and
WHEREAS,
the parties hereto desire that the Seller sell the Mortgage Loans to the
Purchaser pursuant to the terms of this Agreement; and
WHEREAS,
pursuant to the terms of a Pooling and Servicing Agreement dated as of
February
1, 2007 (the “Pooling and Servicing Agreement”) among the Purchaser as
depositor, Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo
Bank, N.A. as master servicer and trust administrator (the “Master Servicer” and
“Trust Administrator”) and Deutsche Bank National Trust Company as trustee (the
“Trustee”), the Purchaser will convey the Mortgage Loans to Soundview Home Loan
Trust 2007-1 (the “Trust”).
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
All
capitalized terms used but not defined herein and below shall have the
meanings
assigned thereto in the Pooling and Servicing Agreement.
“Seller
Information”:
The
information contained in the Prospectus Supplement, read either individually
or
collectively under “SUMMARY OF TERMS—Mortgage Loans,” the first sentence of the
fourth bullet point under “RISK FACTORS—Unpredictability of Prepayments and
Effect on Yields,” the first sentence under “RISK FACTORS—High Loan-to-Value
Ratios Increase Risk of Loss,” the first sentence under “RISK FACTORS—Interest
Only Mortgage Loans,” the second sentence of the third bullet point under “RISK
FACTORS—Interest Generated by the Mortgage Loans May Be Insufficient to Maintain
Overcollateralization,” “THE MORTGAGE POOL,” the first sentence of the seventh
paragraph under “YIELD, PREPAYMENT AND MATURITY CONSIDERATIONS” and “THE
SELLER.”
ARTICLE
II
SALE
OF
MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01 Sale
of Mortgage Loans.
The
Seller, concurrently with the execution and delivery of this Agreement,
does
hereby sell, assign, set over, and otherwise convey to the Purchaser, without
recourse, (i) all of its right, title and interest in and to each Mortgage
Loan,
including the related Cut-off Date Principal Balance, all interest accruing
thereon on or after the Cut-off Date and all collections in respect of
interest
and principal due after the Cut-off Date; (ii) property which secured such
Mortgage Loan and which has been acquired by foreclosure or deed in lieu
of
foreclosure; (iii) its interest in any insurance policies in respect of
the
Mortgage Loans (iv) the right to receive any amounts under the Interest
Rate Cap
Agreement and the Basis Risk Cap Agreement, (v) all proceeds of any of
the
foregoing and (vi) all of its rights under the Servicing Agreements set
forth in
Exhibit 1.
Section
2.02 Obligations
of the Seller and Seller Upon Sale.
In
connection with any transfer pursuant to Section 2.01 hereof, the Seller
further
agrees, at its own expense on or prior to the Closing Date, (a) to cause
its
books and records to indicate that the Mortgage Loans have been sold to
the
Purchaser pursuant to this Agreement and (b) to deliver to the Purchaser
and the
Trustee a computer file containing a true and complete list of all such
Mortgage
Loans specifying for each such Mortgage Loan, as of the Cut-off Date, (i)
its
account number and (ii) the Cut-off Date Principal Balance. Such file,
which
forms a part of Exhibit D to the Pooling and Servicing Agreement, shall
also be
marked as Schedule I to this Agreement and is hereby incorporated into
and made
a part of this Agreement.
In
connection with any conveyance by the Seller, the Seller shall on behalf
of the
Purchaser deliver to, and deposit with the Trustee (or the Custodian on
behalf
of the Trustee), as assignee of the Purchaser, on or before the Closing
Date,
the following documents or instruments with respect to each Mortgage
Loan:
(i) the
original Mortgage Note, endorsed either (A) in blank, in which case the
Trustee
shall cause the endorsement to be completed or (B) in the following form:
“Pay
to the order of Deutsche Bank National Trust Company, as Trustee,” or with
respect to any lost Mortgage Note, an original Lost Note Affidavit stating
that
the original mortgage note was lost, misplaced or destroyed, together with
a
copy of the related mortgage note; provided,
however,
that
such substitutions of Lost Note Affidavits for original Mortgage Notes
may occur
only with respect to Mortgage Loans, the aggregate Cut-off Date Principal
Balance of which is less than or equal to 1.00% of the Pool Balance as
of the
Cut-off Date;
(ii) the
original Mortgage with evidence of recording thereon, and the original
recorded
power of attorney, if the Mortgage was executed pursuant to a power of
attorney,
with evidence of recording thereon or, if such Mortgage or power of attorney
has
been submitted for recording but has not been returned from the applicable
public recording office, has been lost or is not otherwise available, a
copy of
such Mortgage or power of attorney, as the case may be, certified to be
a true
and complete copy of the original submitted for recording;
(iii) an
original Assignment, in form and substance acceptable for recording. The
Mortgage shall be assigned either (A) in blank, without recourse or (B)
to
“Deutsche Bank National Trust Company, as Trustee”;
(iv) an
original copy of any intervening assignment of Mortgage showing a complete
chain
of assignments;
(v) the
original or a certified copy of lender’s title insurance policy;
and
(vi) the
original or copies of each assumption, modification, written assurance,
substitution agreement or guarantee, if any.
The
Seller hereby confirms to the Purchaser and the Trustee that it has caused
the
appropriate entries to be made in its general accounting records to indicate
that such Mortgage Loans have been transferred to the Trustee and constitute
part of the Trust in accordance with the terms of the Pooling and Servicing
Agreement.
If
any of
the documents referred to in Section 2.02(ii), (iii) or (iv) above has
as of the
Closing Date been submitted for recording but either (x) has not been returned
from the applicable public recording office or (y) has been lost or such
public
recording office has retained the original of such document, the obligations
of
the Seller to deliver such documents shall be deemed to be satisfied upon
(1)
delivery to the Trustee or the Custodian, no later than the Closing Date,
of a
copy of each such document certified by the Seller in the case of (x) above
or
the applicable public recording office in the case of (y) above to be a
true and
complete copy of the original that was submitted for recording and (2)
if such
copy is certified by the Seller, delivery to the Trustee or the Custodian,
promptly upon receipt thereof of either the original or a copy of such
document
certified by the applicable public recording office to be a true and complete
copy of the original. If the original lender’s title insurance policy, or a
certified copy thereof, was not delivered pursuant to Section 2.02(v) above.
The
Seller shall deliver or cause to be delivered to the Trustee or the Custodian,
the original or a copy of a written commitment or interim binder or preliminary
report of title issued by the title insurance or escrow company, with the
original or a certified copy thereof to be delivered to the Trustee or
the
Custodian, promptly upon receipt thereof. The Seller shall deliver or cause
to
be delivered to the Trustee or the Custodian promptly upon receipt thereof
any
other documents constituting a part of a Mortgage File received with respect
to
any Mortgage Loan, including, but not limited to, any original documents
evidencing an assumption or modification of any Mortgage Loan.
Upon
discovery or receipt of notice of any materially defective document in,
or that
a document is missing from, a Mortgage File, the Seller shall have 120
days to
cure such defect or deliver such missing document to the Purchaser. If
the
Seller does not cure such defect or deliver such missing document within
such
time period, the Seller shall either repurchase or substitute for such
Mortgage
Loan pursuant to Section 2.03 of the Pooling and Servicing
Agreement.
The
Seller shall cause the Assignments which were delivered in blank to be
completed
and shall cause all Assignments referred to in Section 2.02(iii) hereof
and, to
the extent necessary, in Section 2.02(iv) hereof to be recorded. The Seller
shall be required to deliver such assignments for recording within 180
days of
the Closing Date. In the event that any such Assignment is lost or returned
unrecorded because of a defect therein, the Seller shall promptly have
a
substitute Assignment prepared or have such defect cured, as the case may
be,
and thereafter cause each such Assignment to be duly recorded.
Notwithstanding
the foregoing, for administrative convenience and facilitation of servicing
and
to reduce closing costs, the Assignments of Mortgage shall not be required
to be
submitted for recording (except with respect to any Mortgage Loan located
in
Maryland) unless such failure to record would result in a withdrawal or
a
downgrading by any Rating Agency of the rating on any Class of Certificates;
provided,
however,
each
Assignment shall be submitted for recording by the Seller in the manner
described above, at no expense to the Trust Fund or Trustee, upon the earliest
to occur of: (i) reasonable direction by Holders of Certificates entitled
to at
least 25% of the Voting Rights, (ii) the occurrence of a Servicer Event
of
Termination, (iii) the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Servicer, (iv) the occurrence of a servicing transfer as
described in Section 7.02 of the Pooling and Servicing Agreement, (v) upon
receipt of notice from the Servicer, the occurrence of a bankruptcy, insolvency
or foreclosure relating to the Mortgagor under the related Mortgage and
(vi)
upon receipt of notice from the Servicer, any Mortgage Loan that is 90
days or
more Delinquent. Upon receipt of written notice from the Purchaser that
recording of the Assignments is required pursuant to one or more of the
conditions set forth in the preceding sentence, the Seller shall be required
to
deliver such Assignments for recording as provided above, promptly and
in any
event within 30 days following receipt of such notice. The Seller shall
furnish
the Trustee (or the Custodian on behalf of the Trustee), or its designated
agent, with a copy of each Assignment submitted for recording.
In
the
event that any Mortgage Note is endorsed in blank as of the Closing Date,
promptly following the Closing Date, the Trustee (or the Custodian on behalf
of
the Trustee), at the expense of the Seller, shall cause to be completed
such
endorsements “Pay to the order of Deutsche Bank National Trust Company, as
Trustee, without recourse.”
The
Purchaser hereby acknowledges its acceptance of all right, title and interest
to
the Mortgage Loans and other property, now existing and hereafter created,
conveyed to it pursuant to Section 2.01.
The
parties hereto intend that the transaction set forth herein be a sale by
the
Seller to the Purchaser of all the Seller’s right, title and interest in and to
the Mortgage Loans and other property described above. In the event the
transaction set forth herein is deemed not to be a sale, the Seller hereby
grants to the Purchaser a security interest in all of the Seller’s right, title
and interest in, to and under the Mortgage Loans and other property described
above, whether now existing or hereafter created, to secure all of the
Seller’s
obligations hereunder; and this Agreement shall constitute a security agreement
under applicable law.
Section
2.03 Payment
of Purchase Price for the Mortgage Loans.
In
consideration of the sale of the Mortgage Loans originated by Mortgage
Lenders
Network
USA
from the
Seller to the Purchaser on the Closing Date, the Purchaser agrees to pay
to the
Seller on the Closing Date (the “Purchase Price”) by transfer of (i) immediately
available funds in an amount equal to a portion of the net sale proceeds
of the
Floating Rate Certificates and the Residual Certificates and (ii) a certain
percentage of the Class C Certificates, the Class P Certificates and the
Class
FL Certificates (collectively the “Retained Certificates”) which Retained
Certificates shall be registered in the name of Greenwich Capital Financial
Products, Inc. or its designee. The Seller shall pay, and be billed directly
for, all expenses incurred by the Purchaser in connection with the issuance
of
the Certificates, including, without limitation, printing fees incurred
in
connection with the prospectus relating to the Certificates, blue sky
registration fees and expenses, fees and expenses of Purchaser’s counsel, fees
of the rating agencies requested to rate the Certificates, accountant’s fees and
expenses and the fees and expenses of the Trustee and other out-of-pocket
costs,
if any.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01 Seller
Representations and Warranties Relating to the Mortgage Loans.
The
Seller and the Purchaser understand, acknowledge and agree that, the
representations and warranties set forth in this Section 3.01 are made
as of the
Closing Date or as of the date specifically provided herein.
Unless
otherwise specified, all capitalized terms in this Section 3.01 shall have
the
meanings ascribed to them in the Master Mortgage Loan Purchase and Interim
Servicing Agreement, dated December 1, 2006, between Mortgage Lenders Network
USA, Inc. as seller and interim servicer and Greenwich Capital Financial
Products, Inc. as initial purchaser.
GCFP
hereby represents and warrants with respect to the Mortgage Loans to FASCO
that
as of the Closing Date or as of such date specifically provided
herein:
(a)(i)
The
information set forth in the related Mortgage Loan Schedule is complete,
true
and correct;
(ii) To
the
best of the Seller’s knowledge, there are no delinquent taxes, ground rents,
water charges, sewer rents, assessments, insurance premiums, leasehold
payments,
including assessments payable in future installments or other outstanding
charges affecting the related Mortgaged Property;
(iii) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, recorded in the
applicable public recording office if necessary to maintain the lien priority
of
the Mortgage, and which have been delivered to the Custodian; the substance
of
any such waiver, alteration or modification has been approved by the title
insurer, to the extent required by the related policy, and is reflected
on the
related Mortgage Loan Schedule. No instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in
whole or
in part, except in connection with an assumption agreement approved by
the title
insurer, to the extent required by the policy, and which assumption agreement
has been delivered to the Custodian and the terms of which are reflected
in the
related Mortgage Loan Schedule;
(iv) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or
the
exercise of any right thereunder, render the Mortgage unenforceable, in
whole or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto.
Each
Prepayment Charge or penalty with respect to any Mortgage Loan is permissible,
enforceable and collectible under applicable federal, state and local
law;
(v) All
buildings upon the Mortgaged Property are insured by a Qualified Insurer
against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, pursuant
to
insurance policies providing coverage in an amount not less than the greatest
of
(i) 100% of the replacement cost of all improvements to the Mortgaged Property,
(ii) either (A) the outstanding principal balance of the Mortgage Loan
with
respect to each first lien Mortgage Loan or (B) with respect to each second
lien
Mortgage Loan, the sum of the outstanding principal balance of the related
first
lien mortgage loan and the outstanding principal balance of the second
lien
Mortgage Loan, or (iii) the amount necessary to avoid the operation of
any
co-insurance provisions with respect to the Mortgaged Property, and consistent
with the amount that would have been required as of the date of origination
in
accordance with the Underwriting Guidelines. All such insurance policies
contain
a standard mortgagee clause naming the Seller, its successors and assigns
as
mortgagee and all premiums thereon have been paid. If the Mortgaged Property
is
in an area identified on a Flood Hazard Map or Flood Insurance Rate Map
issued
by the Federal Emergency Management Agency as having special flood hazards
(and
such flood insurance has been made available) a flood insurance policy
meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to the requirements of
prudent
lenders in the secondary mortgage market. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and expense,
and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(vi) The
Mortgage has not been satisfied, cancelled, subordinated or rescinded,
in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed
that
would effect any such satisfaction, cancellation, subordination, rescission
or
release;
(vii) The
Mortgage (including any Negative Amortization which may arise thereunder)
is a
valid, existing and enforceable (A) first lien and first priority security
interest with respect to each Mortgage Loan which is indicated by the Seller
to
be a first lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien
and second priority security interest with respect to each Mortgage Loan
which
is indicated by the Seller to be a second lien (as reflected on the Mortgage
Loan Schedule), in either case, on the Mortgaged Property, including all
improvements on the Mortgaged Property subject only to (a) the lien of
current
real property taxes and assessments not yet due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and other matters
of the
public record as of the date of recording being acceptable to mortgage
lending
institutions generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan and which
do
not adversely affect the Appraised Value of the Mortgaged Property, (c)
with
respect to each Mortgage Loan which is indicated by the Seller to be a
second
lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) a first
lien on
the Mortgaged Property; and (d) other matters to which like properties
are
commonly subject which do not materially interfere with the benefits of
the
security intended to be provided by the Mortgage or the use, enjoyment,
value or
marketability of the related Mortgaged Property. Any security agreement,
chattel
mortgage or equivalent document related to and delivered in connection
with the
Mortgage Loan establishes and creates a valid, existing and enforceable
first or
second lien and first or second priority security interest (in each case,
as
indicated on the Mortgage Loan Schedule) on the property described therein
and
the Seller has full right to sell and assign the same to the Purchaser.
The
Mortgaged Property was not, as of the time of origination of the Mortgage
Loan,
subject to a mortgage, deed of trust, deed to secure debt or other security
instrument creating a lien subordinate to the lien of the Mortgage;
(viii) The
Mortgage Note and the related Mortgage are genuine and each is the legal,
valid
and binding obligation of the maker thereof, enforceable in accordance
with its
terms;
(ix) All
parties to the Mortgage Note and the Mortgage had legal capacity to enter
into
the Mortgage Loan and to execute and deliver the Mortgage Note and the
Mortgage,
and the Mortgage Note and the Mortgage have been duly and properly executed
by
such parties. The Mortgagor is a natural person;
(x) The
proceeds of the Mortgage Loan have been fully disbursed to or for the account
of
the Mortgagor and there is no obligation for the Mortgagee to advance additional
funds thereunder and any and all requirements as to completion of any on-site
or
off-site improvement and as to disbursements of any escrow funds therefor
have
been complied with. All costs, fees and expenses incurred in making or
closing
the Mortgage Loan and the recording of the Mortgage have been paid, and
the
Mortgagor is not entitled to any refund of any amounts paid or due to the
Mortgagee pursuant to the Mortgage Note or Mortgage;
(xi) All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) in compliance with any and all applicable
“doing business” and licensing requirements of the laws of the state wherein the
Mortgaged Property is located;
(xii) The
Mortgage Loan is covered by an American Land Title Association (“ALTA”) lender’s
title insurance policy (which, in the case of an Adjustable Rate Mortgage
Loan
has an adjustable rate mortgage endorsement in the form of ALTA 6.0 or
6.1)
acceptable to prudent lenders in the secondary mortgage market, issued
by a
title insurer acceptable to prudent lenders in the secondary mortgage market
and
qualified to do business in the jurisdiction where the Mortgaged Property
is
located, insuring (subject to the exceptions contained in (x)(a) and (b),
and
with respect to any second lien Mortgage Loan (c), above) the Seller, its
successors and assigns as to the first or second priority lien (as indicated
on
the Mortgage Loan Schedule) of the Mortgage in the original principal amount
of
the Mortgage Loan (including, if the Mortgage Loan provides for Negative
Amortization, the maximum amount of Negative Amortization in accordance
with the
Mortgage) and, with respect to any Adjustable Rate Mortgage Loan, against
any
loss by reason of the invalidity or unenforceability of the lien resulting
from
the provisions of the Mortgage providing for adjustment in the Mortgage
Interest
Rate and Monthly Payment and Negative Amortization provisions of the Mortgage
Note. Additionally, such lender's title insurance policy affirmatively
insures
ingress and egress to and from the Mortgaged Property, and against encroachments
by or upon the Mortgaged Property or any interest therein. The Seller is
the
sole insured of such lender's title insurance policy, and such lender’s title
insurance policy is in full force and effect and will be in full force
and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims are outstanding and, except as disclosed, have been made under
such
lender's title insurance policy, and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which would
impair
the coverage of such lender's title insurance policy;
(xiii) To
the
best of the Seller’s knowledge, there is no default, breach, violation or event
of acceleration existing under the Mortgage or the Mortgage Note and no
event
which, with the passage of time or with notice and the expiration of any
grace
or cure period, would constitute a default, breach, violation or event
of
acceleration, and the Seller has not waived any default, breach, violation
or
event of acceleration. With respect to each second lien Mortgage Loan (i)
the
first lien mortgage loan is in full force and effect, (ii) there is no
default,
breach, violation or event of acceleration existing under such first lien
mortgage or the related mortgage note, (iii) no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration thereunder,
(iv) either (A) the first lien mortgage contains a provision which allows
or (B)
applicable law requires, the mortgagee under the second lien Mortgage Loan
to
receive notice of, and affords such mortgagee an opportunity to cure any
default
by payment in full or otherwise under the first lien mortgage, (v) the
related
first lien does not provide for or permit negative amortization under such
first
lien Mortgage Loan, and (vi) either no consent for the Mortgage Loan is
required
by the holder of the first lien or such consent has been obtained and is
contained in the Mortgage File;
(xiv) There
are
no mechanics' or similar liens or claims which have been filed for work,
labor
or material (and no rights are outstanding that under law could give rise
to
such lien) affecting the related Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(xv) To
the
best of the Seller’s knowledge, all improvements which were considered in
determining the Appraised Value of the related Mortgaged Property lay wholly
within the boundaries and building restriction lines of the Mortgaged Property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property;
(xvi) The
Mortgage Loan was originated by the Seller or by a savings and loan association,
a savings bank, a commercial bank or similar banking institution which
is
supervised and examined by a federal or state authority, or by a mortgagee
approved as such by the Secretary of HUD;
(xvii) Principal
payments on the Mortgage Loan commenced no more than sixty (60) days after
the
proceeds of the Mortgage Loan were disbursed. The Mortgage Loan bears interest
at the Mortgage Interest Rate. With respect to each Mortgage Loan which
is not a
Negative Amortization Loan, the Mortgage Note is payable on the first day
of
each month in Monthly Payments, which, in the case of a Fixed Rate Mortgage
Loan, are sufficient to fully amortize the original principal balance over
the
original term thereof (other than with respect to a Mortgage Loan identified
on
the related Mortgage Loan Schedule as an interest-only Mortgage Loan during
the
interest-only period or a Mortgage Loan which is identified on the related
Mortgage Loan Schedule as a Balloon Mortgage Loan) and to pay interest
at the
related Mortgage Interest Rate, and, in the case of an Adjustable Rate
Mortgage
Loan, are changed on each Adjustment Date, and in any case, are sufficient
to
fully amortize the original principal balance over the original term thereof
(other than with respect to a Mortgage Loan identified on the related Mortgage
Loan Schedule as an interest-only Mortgage Loan during the interest-only
period
or a Mortgage Loan which is identified on the related Mortgage Loan Schedule
as
a Balloon Mortgage Loan) and to pay interest at the related Mortgage Interest
Rate. With respect to each Negative Amortization Mortgage Loan, the related
Mortgage Note requires a Monthly Payment which is sufficient during the
period
following each Payment Adjustment Date, to fully amortize the outstanding
principal balance as of the first day of such period (including any Negative
Amortization) over the then remaining term of such Mortgage Note and to
pay
interest at the related Mortgage Interest Rate; provided, that the Monthly
Payment shall not increase to an amount that exceeds 107.5% of the amount
of the
Monthly Payment that was due immediately prior to the Payment Adjustment
Date;
provided, further, that the payment adjustment cap shall not be applicable
with
respect to the adjustment made to the Monthly Payment that occurs in a
year in
which the Mortgage Loan has been outstanding for a multiple of five (5)
years
and in any such year the Monthly Payment shall be adjusted to fully amortize
the
Mortgage Loan over the remaining term. With respect to each Mortgage Loan
identified on the Mortgage Loan Schedule as an interest-only Mortgage Loan,
the
interest-only period shall not exceed ten (10) years (or such other period
specified on the Mortgage Loan Schedule) and following the expiration of
such
interest-only period, the remaining Monthly Payments shall be sufficient
to
fully amortize the original principal balance over the remaining term of
the
Mortgage Loan and to pay interest at the related Mortgage Interest Rate.
With
respect to each Balloon Mortgage Loan, the Mortgage Note requires a monthly
payment which is sufficient to fully amortize the original principal balance
over a term which is longer than the original term thereof, and to pay
interest
at the related Mortgage Interest Rate, and requires a final Monthly Payment
substantially greater than the preceding monthly payment which is sufficient
to
repay the remaining unpaid principal balance of the Balloon Mortgage Loan
at the
Due Date of such monthly payment. The Index for each Adjustable Rate Mortgage
Loan is as set forth on the Mortgage Loan Schedule. No Mortgage Loan is
a
Convertible Mortgage Loan. No Balloon Mortgage Loan has an original stated
maturity of less than seven (7) years;
(xviii) The
origination, servicing and collection practices used with respect to each
Mortgage Note and Mortgage including, without limitation, the establishment,
maintenance and servicing of the Escrow Accounts and Escrow Payments, if
any,
since origination, have been in all respects legal, proper, prudent and
customary in the mortgage origination and servicing industry. The Mortgage
Loan
has been serviced by the Seller and any predecessor servicer in accordance
with
the terms of the Mortgage Note and Accepted Servicing Practices. With respect
to
escrow deposits and Escrow Payments, if any, all such payments are in the
possession of, or under the control of, the Seller and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or Escrow Payments
or
other charges or payments due the Seller have been capitalized under any
Mortgage or the related Mortgage Note and no such escrow deposits or Escrow
Payments are being held by the Seller for any work on a Mortgaged Property
which
has not been completed;
(xix) The
Mortgaged Property is free of damage and waste and there is no proceeding
pending for the total or partial condemnation thereof;
(xx) The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (a) in the case of a Mortgage designated as
a deed
of trust, by trustee's sale, and (b) otherwise by judicial foreclosure.
Since
origination, the Mortgaged Property has not been subject to any bankruptcy
proceeding or foreclosure proceeding and the Mortgagor has not filed for
protection under applicable bankruptcy laws. There is no homestead or other
exemption available to the Mortgagor which would interfere with the right
to
sell the Mortgaged Property at a trustee's sale or the right to foreclose
the
Mortgage. The Mortgagor has not notified the Seller and the Seller has
no
knowledge of any relief requested or allowed to the Mortgagor under the
Servicemembers’ Civil Relief Act;
(xxi) The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
in
effect at the time the Mortgage Loan was originated; and the Mortgage Note
and
Mortgage are on forms acceptable to prudent lenders in the secondary mortgage
market;
(xxii) The
Mortgage Note is not and has not been secured by any collateral except
the lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(x) above;
(xxiii) The
Mortgage File contains an appraisal of the related Mortgaged Property which
satisfied the standards of prudent lenders in the secondary mortgage market,
was
on appraisal form 1004 or form 2055 with an interior inspection and was
made and
signed, prior to the approval of the Mortgage Loan application, by a qualified
appraiser, duly appointed by the Seller, who had no interest, direct or
indirect
in the Mortgaged Property or in any loan made on the security thereof,
whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan
and who met the minimum qualifications of prudent lenders in the secondary
mortgage market. Each appraisal of the Mortgage Loan was made in accordance
with
the relevant provisions of the Financial Institutions Reform, Recovery,
and
Enforcement Act of 1989;
(xxiv) In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified
under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will
become
payable by the Purchaser to the trustee under the deed of trust, except
in
connection with a trustee's sale after default by the Mortgagor;
(xxv) No
Mortgage Loan contains provisions pursuant to which Monthly Payments are
(a)
paid or partially paid with funds deposited in any separate account established
by the Seller, the Mortgagor, or anyone on behalf of the Mortgagor, (b)
paid by
any source other than the Mortgagor or (c) contains any other similar provisions
which may constitute a “buydown” provision. The Mortgage Loan is not a graduated
payment mortgage loan and the Mortgage Loan does not have a shared appreciation
or other contingent interest feature;
(xxvi) The
Mortgagor has executed a statement to the effect that the Mortgagor has
received
all disclosure materials required by applicable law with respect to the
making
of fixed rate mortgage loans in the case of Fixed Rate Mortgage Loans,
and
adjustable rate mortgage loans in the case of Adjustable Rate Mortgage
Loans and
rescission materials with respect to Refinanced Mortgage Loans, and such
statement is and will remain in the Mortgage File;
(xxvii) No
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property or (b) facilitating the trade-in or exchange of
a
Mortgaged Property;
(xxviii) No
Mortgage Loan had an LTV or a CLTV at origination in excess of 100%. No
Mortgage
Loan is subject to a lender paid primary mortgage insurance policy;
(xxix) At
origination, the Mortgaged Property was, and to the best of Seller’s knowledge,
still is lawfully occupied under applicable law; all inspections, licenses
and
certificates required to be made or issued with respect to all occupied
portions
of the Mortgaged Property and, with respect to the use and occupancy of
the
same, including but not limited to certificates of occupancy, have been
made or
obtained from the appropriate authorities;
(xxx) To
the
best of the Seller’s knowledge, no error, omission, misrepresentation,
negligence, fraud or similar occurrence with respect to a Mortgage Loan
has
taken place on the part of any person, including without limitation the
Mortgagor, any appraiser, any builder or developer, or any other party
involved
in the origination of the Mortgage Loan or in the application of any insurance
in relation to such Mortgage Loan;
(xxxi) For
each
non-MERS Mortgage Loan, the Assignment of Mortgage is in recordable form,
except
for the name of the assignee which is blank, and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(xxxii) Any
principal advances made to the Mortgagor prior to the Cut-off Date have
been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest
rate and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first or second (as indicated
on
the Mortgage Loan Schedule) lien priority by a title insurance policy,
an
endorsement to the policy insuring the mortgagee's consolidated interest
or by
other title evidence acceptable to prudent lenders in the secondary mortgage
market. The consolidated principal amount does not exceed the original
principal
amount of the Mortgage Loan plus any Negative Amortization;
(xxxiii) If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or
a unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of prudent lenders in the secondary mortgage market;
(xxxiv) The
source of the down payment with respect to each Mortgage Loan has been
fully
verified by the Seller;
(xxxv) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(xxxvi) The
Seller shall, at its own expense, cause each first lien Mortgage Loan to
be
covered by a Tax Service Contract which is assignable to the Purchaser
or its
designee; provided however, that if the Seller fails to purchase such Tax
Service Contract, the Seller shall be required to reimburse the Purchaser
for
all costs and expenses incurred by the Purchaser in connection with the
purchase
of any such Tax Service Contract;
(xxxvii) Each
Mortgage Loan is covered by a Flood Zone Service Contract which is assignable
to
the Purchaser or its designee or, for each Mortgage Loan not covered by
such
Flood Zone Service Contract, the Seller agrees to purchase such Flood Zone
Service Contract;
(xxxviii) No
predatory, abusive, or deceptive lending practices, including but not limited
to, the extension of credit to a Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a Mortgagor
which has no apparent benefit to the Mortgagor, were employed in connection
with
the origination of the Mortgage Loan;
(xxxix) The
debt-to-income ratio of the related Mortgagor was not greater than 60%
at the
origination of the related Mortgage Loan;
(xl) The
Mortgage Loans were not selected from the outstanding one- to four-family
mortgage loans in the Seller’s portfolio as to which the representations and
warranties set forth in this Agreement could be made at the related Closing
Date
in a manner so as to affect adversely the interests of the
Purchaser;
(xli) The
Mortgage contains an enforceable provision for the acceleration of the
payment
of the unpaid principal balance of the Mortgage Loan in the event that
the
Mortgaged Property is sold or transferred without the prior written consent
of
the mortgagee thereunder;
(xlii) The
Mortgage Loan complies with all applicable consumer credit statutes and
regulations, including, without limitation, the respective Uniform Consumer
Credit Code laws in effect in Alabama, Colorado, Idaho, Indiana, Iowa,
Kansas,
Maine, Oklahoma, South Carolina, Utah, West Virginia and Wyoming, has been
originated by a properly licensed entity, and in all other respects, complies
with all of the material requirements of any such applicable laws;
(xliii) The
information set forth in the Mortgage Loan Schedule as to Prepayment Charges
is
complete, true and correct in all material respects and each Prepayment
Charge
is permissible, enforceable and collectable in accordance with its terms
upon
the Mortgagor’s full and voluntary principal payment under applicable law
(except to the extent that the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
affecting creditor’s rights generally or the collectability thereof may be
limited due to acceleration in connection with a foreclosure);
(xliv) The
Mortgage Loan was not prepaid in full prior to the Closing Date and the
Seller
has not received notification from a Mortgagor that a prepayment in full
shall
be made after the Closing Date;
(xlv) No
Mortgage Loan is secured by cooperative housing, commercial property or
mixed
use property;
(xlvi) The
Seller has transmitted full-file credit reporting data for each Mortgage
Loan
pursuant to Xxxxxx Xxx Guide Announcement 95-19 and for each Mortgage Loan,
Seller agrees it shall report one of the following statuses each month
as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(xlvii) With
respect to any Mortgage Loan which is secured by manufactured housing,
if such
Mortgage Loans are permitted hereunder, such Mortgage Loan satisfies the
requirements for inclusion in residential mortgage backed securities
transactions rated by Standard & Poor's Ratings Services and such
manufactured housing will be the principal residence of the Mortgagor upon
the
origination of the Mortgage Loan. With respect to any second lien Mortgage
Loan,
such lien is on a one- to four-family residence that is (or will be) the
principal residence of the Mortgagor upon the origination of the second
lien
Mortgage Loan;
(xlviii) Each
Mortgage Loan constitutes a “qualified mortgage” under Section 860G(a)(3)(A) of
the Code and Treasury Regulation Section 1.860G-2(a)(1);
(xlix) No
Mortgage Loan is a “manufactured housing loan” or “home improvement home loan”
pursuant to the New Jersey Home Ownership Act. No Mortgage Loan is a “High-Cost
Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22
et
seq.);
(l)
With
respect to each MOM Loan, a MIN has been assigned by MERS and such MIN
is
accurately provided on the Mortgage Loan Schedule. The related Assignment
of
Mortgage to MERS has been duly and properly recorded, or has been delivered
for
recording to the applicable recording office;
(li) With
respect to each MOM Loan, Seller has not received any notice of liens or
legal
actions with respect to such Mortgage Loan and no such notices have been
electronically posted by MERS; and
(lii) With
respect to each second lien Mortgage Loan, either no consent for the Mortgage
Loan is required by the holder of the first lien or such consent has been
obtained and is contained in the Mortgage File.
(liii) No
Mortgage Loan is (a)(1) subject to the provisions of the Homeownership
and
Equity Protection Act of 1994 as amended (“HOEPA”) or (2) has an “annual
percentage rate” or “total points and fees” (as each such term is defined under
HOEPA) payable by the Mortgagor that equal or exceed the applicable thresholds
defined under HOEPA (as defined in 12 CFR 226.32 (a)(1)(i) and (ii)), (b)
a
“high cost” mortgage loan, “covered” mortgage loan, “high risk home” mortgage
loan, or “predatory” mortgage loan or any other comparable term, no matter how
defined under any federal, state or local law, (c) subject to any comparable
federal, state or local statutes or regulations, or any other statute or
regulation providing for heightened regulatory scrutiny or assignee liability
to
holders of such mortgage loans, or (d) a High Cost Loan or Covered Loan,
as
applicable (as such terms are defined in the current Standard & Poor’s
LEVELS® Glossary Revised, Appendix E);
(liv) No
Mortgage Loan is secured by real property or secured by a manufactured
home
located in the state of Georgia unless (x) such Mortgage Loan was originated
prior to October 1, 2002 or after March 6, 2003, or (y) the property securing
the Mortgage Loan is not, nor will be, occupied by the Mortgagor as the
Mortgagor’s principal dwelling. No Mortgage Loan is a “High Cost Home Loan” as
defined in the Georgia Fair Lending Act, as amended (the “Georgia Act”). Each
Mortgage Loan that is a “Home Loan” under the Georgia Act complies with all
applicable provisions of the Georgia Act. No Mortgage Loan secured by owner
occupied real property or an owner occupied manufactured home located in
the
State of Georgia was originated (or modified) on or after October 1, 2002
through and including March 6, 2003;
(lv) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive and/or usury lending laws;
(lvi) No
mortgage loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act.
GCFP
hereby represents and warrants to FASCO, with respect to the Group I Mortgage
Loans as of the Closing Date or as of such date specifically provided
herein:
(b)(i) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
predatory and abusive lending, fair lending, consumer credit protection,
equal
credit opportunity, fair housing or disclosure laws applicable to the
origination and servicing of mortgage loans of a type similar to the Mortgage
Loans and applicable to any prepayment penalty associated with the Mortgage
Loans at origination have been complied with;
(ii) No
Mortgagor was required to purchase any credit insurance product (e.g.,
life,
mortgage, disability, accident, unemployment or health insurance product)
or
debt cancellation agreement as a condition of obtaining the extension of
credit.
No Mortgagor obtained a prepaid single premium credit insurance policy
(e.g.,
life, mortgage, disability, accident, unemployment or health insurance
product)
or debt cancellation agreement in connection with the origination of the
Mortgage Loan. No proceeds from any Mortgage Loan were used to purchase
single
premium credit insurance policies ) or debt cancellation agreements as
part of
the origination of, or as a condition to closing, such Mortgage
Loan;
(iii) With
respect to each Mortgage Loan, the Seller has fully and accurately furnished
complete information (i.e., favorable and unfavorable) on the related borrower
credit files to Equifax, Experian and Trans Union Credit Information Company,
in
accordance with the Fair Credit Reporting Act and its implementing regulations,
on a monthly basis and, for each Mortgage Loan, the Seller will furnish,
in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information on its borrower credit files to Equifax,
Experian, and Trans Union Credit Information Company, on a monthly
basis;
(iv) The
Mortgagor was not encouraged or required to select a mortgage loan product
offered by the Mortgage Loan’s originator which is a higher cost product
designed for less creditworthy borrowers, taking into account such facts
as,
without limitation, the Mortgage Loan’s requirements and the Mortgagor’s credit
history, income, assets and liabilities. With respect to any Mortgage Loan,
the
Mortgagor was assigned the highest credit grade available with respect
to a
mortgage loan product offered by such Mortgage Loan’s originator, based on a
comprehensive assessment of risk factors, including the Mortgagor’s credit
history;
(v) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely solely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension of credit.
The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities, to the proposed mortgage payment and, based on such
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of origination the Mortgagor had the ability to make timely
payments
on the Mortgage Loan;
(vi) All
points and fees related to each Mortgage Loan were disclosed in writing
to the
related Borrower in accordance with applicable state and federal laws and
regulations. With respect to each Mortgage Loan that is segregated for
a Xxxxxx
Mae or Xxxxxxx Mac sale, no related Borrower was charged “points and fees”
(whether or not financed) in an amount greater than (a) $1,000 or (b) 5%
of the
principal amount of such loan, whichever is greater, such 5% limitation
is
calculated in accordance with Xxxxxx Mae’s anti-predatory lending requirements
as set forth in the Xxxxxx Xxx Guides. For purposes of this representation,
“points and fees” (a) include origination, underwriting, broker and finder’s
fees and other charges that the lender imposed as a condition of making
the
loan, whether they are paid to the lender or a third party, and (b) exclude
bona
fide discount points, fees paid for actual services rendered in connection
with
the origination of the mortgage (such as attorneys’ fees, notaries fees and fees
paid for property appraisals, credit reports, surveys, title examinations
and
extracts, flood and tax certifications, and home inspections); the cost
of
mortgage insurance or credit-risk price adjustments; the costs of title,
hazard,
and flood insurance policies; state and local transfer taxes or fees; escrow
deposits for the future payment of taxes and insurance premiums; and other
miscellaneous fees and charges, which miscellaneous fees and charges, in
total,
do not exceed 0.25 percent of the loan amount. All points, fees and charges
(including finance charges) and whether or not financed, assessed, collected
or
to be collected in connection with the origination and servicing of each
Mortgage Loan were disclosed in writing to the related Mortgagor in accordance
with applicable state and federal laws and regulations;
(vii) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising
out of
or relating in any way to the Mortgage Loan transaction. No Mortgage Loan
is
subject to any mandatory arbitration;
(viii) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage Loans
are
subject to a Prepayment Charge. With respect to any Mortgage Loan that
contains
a provision permitting imposition of a premium upon a prepayment prior
to
maturity: (a) the Mortgage Loan provides some benefit to the Mortgagor
(e.g. a
rate or fee reduction) in exchange for accepting such Prepayment Charge;
(b)
prior to the Mortgage Loan’s origination, the Mortgage Loan’s originator had
mortgage loan programs available that provided the option of obtaining
a
Mortgage Loan that did not require payment of such a Prepayment Charge
and the
Mortgage Loan was made available to the borrower with and without prepayment
restriction; (c) the Prepayment Charge was adequately disclosed to the
Mortgagor
pursuant to applicable state and federal law; (d) the duration of the Prepayment
Charge shall not exceed three (3) years from the date of the Mortgage Note;
and
(e) such Prepayment Charge shall not be imposed in any instance where the
Mortgage Loan is accelerated or paid off in connection with the workout
of a
delinquent Mortgage or due to the Mortgagor’s default, notwithstanding that the
terms of the Mortgage Loan or state or federal law might permit the imposition
of such Prepayment Charge; and
(ix) The
original principal balance of each mortgage loan underlying our Security
must be
within Xxxxxxx Mac’s dollar amount limits for conforming one- to four-family
mortgage loans.
Section
3.02 Seller
Representations and Warranties Relating to the Seller.
The
Seller represents, warrants and covenants to the Purchaser as of the Closing
Date or as of such other date specifically provided herein:
(ii) The
Seller is duly organized, validly existing and in good standing as a corporation
under the laws of the State of Delaware and is and will remain in compliance
with the laws of each state in which any Mortgaged Property is located
to the
extent necessary to ensure the enforceability of each Mortgage Loan in
accordance with the terms of this Agreement;
(iii) The
Seller has the full power and authority to hold each Mortgage Loan, to
sell each
Mortgage Loan, to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Seller
has duly
authorized the execution, delivery and performance of this Agreement, has
duly
executed and delivered this Agreement and this Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terns except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization;
(iv) The
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller’s
articles of incorporation or by-laws or constitute a default under or result
in
a breach or acceleration of, any material contract, agreement or other
instrument to which the Seller is a party or which may be applicable to
the
Seller or its assets;
(v) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or
decree
of any court or any order or regulation of any federal, state, municipal
or
governmental agency having jurisdiction over the Seller or its assets,
which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its
assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(vi) Except
with respect to 0.32% of the Group I Mortgage Loans and 0.56% of the Group
II
Mortgage Loans, no Mortgage Loan is thirty (30) or more days delinquent
as of
January 31, 2007 based
on
the OTS method.
(vii) Immediately
prior to the payment of the Purchase Price for each Mortgage Loan, the
Seller
was the owner of the related Mortgage and the indebtedness evidenced by
the
related Mortgage Note and upon the payment of the Purchase Price by the
Purchaser, in the event that the Seller retains record title, the Seller
shall
retain such record title to each Mortgage, each related Mortgage Note and
the
related Mortgage Files with respect thereto in trust for the Purchaser
as the
owner thereof,
(viii) The
Seller has not transferred the Mortgage Loans to the Purchaser with any
intent
to hinder, delay or defraud any of its creditors;
(ix) There
are
no actions or proceedings against, or investigations known to it of, the
Seller
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans or the consummation of the transactions contemplated by this Agreement
or
(C) that might prohibit or materially and adversely affect the performance
by
the Seller of its obligations under, or validity or enforceability of,
this
Agreement;
(x) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the consummation of
the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been
obtained;
(xi) The
consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Seller. The sale of the Mortgage Loans
is in
the ordinary course of business of the Seller and the assignment and conveyance
of the Mortgage Notes and the Mortgages by the Seller are not subject to
the
bulk transfer or any similar statutory provisions;
(xii) Except
with respect to liens released immediately prior to the transfer herein
contemplated, each Mortgage Note and related Mortgage have not been assigned
or
pledged and immediately prior to the transfer and assignment herein
contemplated, the Seller held good, marketable and indefeasible title to,
and
was the sole owner and holder of, each Mortgage Loan subject to no liens,
charges, mortgages, claims, participation interests, equities, pledges
or
security interests of any nature, encumbrances or rights of others
(collectively, a “Lien”); the Seller has full right and authority under all
governmental and regulatory bodies having jurisdiction over the Seller,
subject
to no interest or participation of, or agreement with, any party, to sell
and
assign the same pursuant to this Agreement; and immediately upon the transfers
and assignments herein contemplated. The Seller shall have transferred
all of
its right, title and interest in and to each Mortgage Loan and the Trustee
will
hold good, marketable and indefeasible title to, and be the sole owner
of, each
Mortgage Loan subject to no Liens.
(xiii) The
Seller does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this Agreement;
and
(xiv) Except
with respect to any statement regarding the intentions of the Purchaser,
or any
other statement contained herein the truth or falsity of which is dependant
solely upon the actions of the Purchaser, this Agreement does not contain
any
untrue statement of material fact or omit to state a material fact necessary
to
make the statements contained herein not misleading. The written statements,
reports and other documents prepared and furnished or to be prepared and
furnished by the Seller pursuant to this Agreement or in connection with
the
transactions contemplated hereby taken in the aggregate do not contain
any
untrue statement of material fact or omit to state a material fact necessary
to
make the statements contained therein not misleading.
Section
3.03 Remedies
for Breach of Representations and Warranties.
It is
understood and agreed that the representations and warranties set forth
in
Subsections 3.01 and 3.02 shall survive the sale of the Mortgage Loans
to the
Purchaser and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment
or the
examination or lack of examination of any Mortgage File. Upon discovery
by
either the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties that materially and adversely affects the
value
of the Mortgage Loans or the interest of the Purchaser (or which materially
and
adversely affects the interests of the Purchaser in the related Mortgage
Loan in
the case of a representation and warranty relating to a particular Mortgage
Loan), the party discovering such breach shall give prompt written notice
to the
other. It is understood by the parties hereto that a breach of the
representations and warranties made in Section 3.01(b) and Section
3.01(a)(xlix), (liii) and (liv) will be deemed to materially and adversely
affect the value of the related Mortgage Loan or the interest of the
Purchaser.
Within
120 days of the earlier of either discovery by or notice to the Seller
of any
breach of a representation or warranty made by the Seller that materially
and
adversely affects the value of a Mortgage Loan or the Mortgage Loans or
the
interest therein of the Purchaser, the Seller shall use its best efforts
promptly to cure such breach in all material respects and, if such breach
cannot
be cured, the Seller shall, at the Purchaser’s option, repurchase such Mortgage
Loan at the Purchase Price. In the event that a breach shall involve any
representation or warranty set forth in Subsection 3.02 and such breach
cannot
be cured within 120 days of the earlier of either discovery by or notice
to the
Seller of such breach, all of the Mortgage Loans shall, at the Purchaser’s
option be repurchased by the Seller at the Purchase Price. The Seller may,
at
the request of the Purchaser and assuming the Seller has a Qualified Substitute
Mortgage Loan, rather than repurchase a deficient Mortgage Loan as provided
above, remove such Mortgage Loan and substitute in its place a Qualified
Substitute Mortgage Loan or Loans. If the Seller does not provide a Qualified
Substitute Mortgage Loan or Loans, it shall repurchase the deficient Mortgage
Loan. Any repurchase of a Mortgage Loan(s) pursuant to the foregoing provisions
of this Section 3.03 shall occur on a date designated by the Purchaser
and shall
be accomplished by deposit in accordance with Section 2.03 of the Pooling
and
Servicing Agreement. Any repurchase or substitution required by this Section
shall be made in a manner consistent with Section 2.03 of the Pooling and
Servicing Agreement.
In
addition to the foregoing, within 120 days of the earlier of discovery
by the
Seller or receipt of notice by the Seller of (i) the breach of any
representation or warranty of Ameriquest Mortgage Company (“Ameriquest”) set
forth in Section 7.03 of the Master Mortgage Loan Purchase and Interim
Servicing
Agreement, dated June 1, 2006 (the “Purchase Agreement”), between GCFP and
Ameriquest, which materially and adversely affects the interests of the
Certificateholders in any of the Mortgage Loans originated by Ameriquest
(the
“Ameriquest Mortgage Loans”) and for which Ameriquest has failed to cure such
breach in accordance with the terms of the Purchase Agreement and (ii)(a)
the
fact that Ameriquest is no longer an operating company or (b) an Officers’
Certificate certifying to the fact that Ameriquest is financially unable
to cure
such breach pursuant to the terms of the Purchase Agreement, the Seller
shall
take such action described in Section 2.03 of the Pooling Agreement in
respect
of such Ameriquest Mortgage Loan. Such obligation of the Seller shall continue
until such time that the Rating Agencies inform Ameriquest and the Seller
in
writing that such obligation is no longer required in order for the Rating
Agencies to maintain their then-current ratings on the
Certificates.
Notwithstanding
the foregoing, within 90 days of the earlier of either discovery by or
notice to
the Seller of a breach of the representation of the Seller set forth in
Section
3.01(ww), the Seller shall repurchase such Mortgage Loan at the Purchase
Price
or substitute a Qualified Substitute Mortgage Loan for such Mortgage Loan,
in
each case, in accordance with the provisions set forth above.
Notwithstanding
the foregoing, within 90 days of the earlier of discovery by the Seller
or
receipt of notice by the Seller of the breach of the representation of
the
Seller set forth in Section 3.01(tt) above which materially and adversely
affects the interests of the Holders of the Class P Certificates in any
Prepayment Charge, the Seller shall pay the amount of the scheduled Prepayment
Charge, for the benefit of the Holders of the Class P Certificates, by
depositing such amount into the Collection Account, net of any amount previously
collected by the Servicer and paid by the Servicer, for the benefit of
the
Holders of the Class P Certificates, in respect of such Prepayment
Charge.
At
the
time of substitution or repurchase of any deficient Mortgage Loan, the
Purchaser
and the Seller shall arrange for the reassignment of the repurchased or
substituted Mortgage Loan to the Seller and the delivery to the Seller
of any
documents held by the Trustee relating to the deficient or repurchased
Mortgage
Loan. In the event the Purchase Price is deposited in the Collection Account.
The Seller shall, simultaneously with such deposit, give written notice
to the
Purchaser that such deposit has taken place. Upon such repurchase, the
Mortgage
Loan Schedule shall be amended to reflect the withdrawal of the repurchased
Mortgage Loan from this Agreement.
As
to any
Deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, the Seller shall effect such substitution by delivering
to the Purchaser or its designee for such Qualified Substitute Mortgage
Loan or
Loans the Mortgage Note, the Mortgage, the Assignment and such other documents
and agreements as are required by the Pooling and Servicing Agreement.
with the
Mortgage Note endorsed as required therein. The Seller shall remit for
deposit
in the Collection Account the Monthly Payment due on such Qualified Substitute
Mortgage Loan or Loans in the month following the date of such substitution.
Monthly payments due with respect to Qualified Substitute Mortgage Loans
in the
month of substitution will be retained by the Seller. For the month of
substitution, distributions to the Purchaser will include the Monthly Payment
due on such Deleted Mortgage Loan in the month of substitution, and the
Seller
shall thereafter be entitled to retain all amounts subsequently received
by the
Seller in respect of such Deleted Mortgage Loan. Upon such substitution,
the
Qualified Substitute Mortgage Loans shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made
with
respect to such Qualified Substitute Mortgage Loan or Loans as of the date
of
substitution, the covenants, representations and warranties set forth in
Subsections 3.01 and 3.02.
It
is
understood and agreed that the representations and warranties set forth
in
Sections 3.01 and 3.02 shall survive delivery of the respective Mortgage
Files
to the Trustee on behalf of the Purchaser.
It
is
understood and agreed that the obligations of the Seller set forth in this
Section 3.03 to cure, repurchase and substitute for a defective Mortgage
Loan
and the obligations of the Seller to indemnify the Purchaser as provided
in
Section 5.01 constitute the sole remedies of the Purchaser respecting a
missing
or defective document or a breach of the representations and warranties
contained in Section 3.01 or 3.02.
ARTICLE
IV
SELLER’S
COVENANTS
Section
4.01 Covenants
of the Seller.
The
Seller hereby covenants that except for the transfer hereunder, the Seller
will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on any Mortgage Loan, or any
interest
therein; the Seller will notify the Trustee, as assignee of the Purchaser,
of
the existence of any Lien on any Mortgage Loan immediately upon discovery
thereof, and the Seller will defend the right, title and interest of the
Trust,
as assignee of the Purchaser, in, to and under the Mortgage Loans, against
all
claims of third parties claiming through or under the Seller; provided,
however,
that
nothing in this Section 4.01 shall prevent or be deemed to prohibit the
Seller
from suffering to exist upon any of the Mortgage Loans any Liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the
Seller
shall currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with
respect
thereto.
ARTICLE
V
INDEMNIFICATION
WITH RESPECT TO THE MORTGAGE LOANS
Section
5.01 Indemnification.
(ii) The
Seller indemnifies and holds harmless the Purchaser, its respective officers
and
directors and each person, if any, who controls the Purchaser within the
meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act,
as
follows:
(i) against
any and all losses, claims, expenses, damages or liabilities, joint or
several,
to which the Purchaser or such controlling person may become subject under
the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof including, but not limited to,
any
loss, claim, expense, damage or liability related to purchases and sales
of the
Certificates) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus Supplement,
or
any amendment or supplement thereto, or arise out of, or are based upon,
the
omission or alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements made therein not misleading,
to the extent that any untrue statement or alleged untrue statement therein
results (or is alleged to have resulted) from an error or material omission
in
the information concerning the Seller Information furnished by the Seller
to the
Purchaser for use in the preparation of the Prospectus Supplement, which
error
was not superseded or corrected by the delivery to the Purchaser of corrected
written or electronic information, or for which the Seller provided written
notice of such error to the Purchaser prior to the confirmation of the
sale of
the Certificates; and will reimburse the Purchaser and each such controlling
person for any legal or other expenses reasonably incurred by the Purchaser
or
such controlling person in connection with investigating or defending any
such
loss, claim, damage. liability or action as such expenses are
incurred;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, to the
extent
of the aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened,
or of
any claim whatsoever based upon any such untrue statement or omission,
or any
such alleged untrue statement or omission, if such settlement is effected
with
the written consent of the Purchaser; and
(iii) against
any and all expense whatsoever (including the fees and disbursements of
counsel
chosen by the Purchaser), reasonably incurred in investigating, preparing
or
defending against any litigation, or investigation or proceeding by any
governmental agency or body. commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under
clause (i) or clause (ii) above.
This
indemnity agreement will be in addition to any liability which the Seller
may
otherwise have.
(iii) Promptly
after receipt by any indemnified party under this Article V of notice of
any
claim or the commencement of any action, such indemnified party shall,
if a
claim in respect thereof is to be made against any indemnifying party under
this
Article V, notify the indemnifying party in writing of the claim or the
commencement of that action; provided,
however,
that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Article V except to the extent it
has
been materially prejudiced by such failure and, provided further, that
the
failure to notify any indemnifying party shall not relieve it from any
liability
which it may have to any indemnified party otherwise than under this Article
V.
If
any
such claim or action shall be brought against an indemnified party, and
it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled
to participate therein and, to the extent that it wishes, jointly with
any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice
from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to
the indemnified party under this Article V for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any
indemnified party shall have the right to employ separate counsel in any
such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless:
(i) the
employment thereof has been specifically authorized by the indemnifying
party in
writing; (ii) such indemnified party shall have been advised in writing
by such
counsel that there may be one or more legal defenses available to it which
are
different from or additional to those available to the indemnifying party
and in
the reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel; or (iii) the indemnifying party has failed
to
assume the defense of such action and employ counsel reasonably satisfactory
to
the indemnified party, in which case, if such indemnified party notifies
the
indemnifying party in writing that it elects to employ separate counsel
at the
expense of the indemnifying party, the indemnifying party shall not have
the
right to assume the defense of such action on behalf of such indemnified
party,
it being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or
circumstances, be liable for the reasonable fees and expenses of more than
one
separate firm of attorneys (in addition to local counsel) at any time for
all
such indemnified parties, which firm shall be designated in writing by
the
Purchaser, if the indemnified parties under this Article V consist of the
Purchaser.
Each
indemnified party, as a condition of the indemnity agreements contained
in
Section 5.01 (a) and (b) hereof, shall use its best efforts to cooperate
with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to
indemnify and hold harmless any indemnified party from and against any
loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested
an
indemnifying party to consent to a settlement of any action, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if such settlement is entered into
more
than 30 days after receipt by such indemnifying party of the aforesaid
request
and the indemnifying party has not previously provided the indemnified
party
with written notice of its objection to such settlement. No indemnifying
party
shall effect any settlement of any pending or threatened proceeding in
respect
of which an indemnified party is or could have been a party and indemnity
is or
could have been sought hereunder, without the written consent of such
indemnified party, unless settlement includes an unconditional release
of such
indemnified party from all liability and claims that are the subject matter
of
such proceeding.
(iv) In
order
to provide for just and equitable contribution in circumstances in which
the
indemnity agreement provided for in this Article is for any reason held
to be
unenforceable although applicable in accordance with its terms, the Seller,
on
the one hand, and the Purchaser, on the other, shall contribute to the
aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated
by
said indemnity agreement incurred by the Seller and the Purchaser in such
proportions as shall be appropriate to reflect the relative benefits received
by
the Seller on the one hand and the Purchaser on the other from the sale
of the
Mortgage Loans; provided,
however,
that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11
(f) of the Securities Act) shall be entitled to contribution from any person
who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each officer and director of the Purchaser and each person, if
any, who
controls the Purchaser within the meaning of Section 15 of the Securities
Act
shall have the same rights to contribution as the Purchaser and each director
of
the Seller, each officer of the Seller, and each person, if any, who controls
the Seller within the meaning of Section 15 of the Securities Act shall
have the
same rights to contribution as the Seller.
(v) The
Seller agrees to indemnify and to hold each of the Purchaser, the Trustee,
each
of the officers and directors of each such entity and each person or entity
who
controls each such entity or person and each Certificateholder harmless
against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, fees and expenses that the
Purchaser, the Trustee, or any such person or entity and any Certificateholder
may sustain in any way (i) related to the failure of the Seller to perform
its
duties in compliance with the terms of this Agreement or (ii) arising from
a
breach by the Seller of its representations and warranties in Sections
3.01 and
3.02 of this Agreement. The Seller shall immediately notify the Purchaser,
the
Trustee and each Certificateholder if a claim is made by a third party
with
respect to this Agreement. The Seller shall assume the defense of any such
claim
and pay all expenses in connection therewith, including reasonable counsel
fees,
and promptly pay, discharge and satisfy any judgment or decree which may
be
entered against the Purchaser, the Trustee or any such person or entity
and/or
any Certificateholder in respect of such claim.
ARTICLE
VI
TERMINATION
Section
6.01 Termination.
The
respective obligations and responsibilities of the Seller and the Purchaser
created hereby shall terminate, except for the Seller’s indemnity obligations as
provided herein upon the termination of the Trust as provided in Article
X of
the Pooling and Servicing Agreement.
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
Section
7.01 Amendment.
This
Agreement may be amended from time to time by the Seller and the Purchaser,
by
written agreement
signed by the Seller and the Purchaser.
Section
7.02 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section
7.03 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows: (i) if to the Seller,
Greenwich Capital Financial Products, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Legal, or such other address as may hereafter
be
furnished to the Purchaser in writing by the Seller and (ii) if to the
Purchaser, Financial Asset Securities Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Legal, or such other address as may hereafter
be
furnished to the Seller in writing by the Purchaser.
Section
7.04 Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions of terms of this Agreement
shall be held invalid for any reason whatsoever, 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 of enforceability of the other provisions of this
Agreement.
Section
7.05 Counterparts.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original and such counterparts, together, shall constitute
one and the same agreement.
Section
7.06 Further
Agreements.
The
Purchaser and the Seller each agree to execute and deliver to the other
such
additional documents, instruments or agreements as may be necessary or
reasonable and appropriate to effectuate the purposes of this Agreement
or in
connection with the issuance of any Series of Certificates representing
interests in the Mortgage Loans.
Without
limiting the generality of the foregoing, as a further inducement for the
Purchaser to purchase the Mortgage Loans from the Seller, the Seller will
cooperate with the Purchaser in connection with the sale of any of the
securities representing interests in the Mortgage Loans. In that connection,
the
Seller will provide to the Purchaser any and all information and appropriate
verification of information, whether through letters of its auditors and
counsel
or otherwise, as the Purchaser shall reasonably request and will provide
to the
Purchaser such additional representations and warranties, covenants, opinions
of
counsel, letters from auditors, and certificates of public officials or
officers
of the Seller as are reasonably required in connection with such transactions
and the offering of investment grade securities rated by the Rating
Agencies.
Section
7.07 Intention
of the Parties.
It is
the intention of the parties that the Purchaser is purchasing, and the
Seller is
selling, the Mortgage Loans rather than pledging the Mortgage Loans to
secure a
loan by the Purchaser to the Seller. Accordingly, the parties hereto each
intend
to treat the transaction for federal income tax purposes and all other
purposes
as a sale by the Seller, and a purchase by the Purchaser, of the Mortgage
Loans.
The Purchaser will have the right to review the Mortgage Loans and the
related
Mortgage Files to determine the characteristics of the Mortgage Loans which
will
affect the federal income tax consequences of owning the Mortgage Loans
and the
Seller will cooperate with all reasonable requests made by the Purchaser
in the
course of such review.
Section
7.08 Successors
and Assigns; Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by
the
Seller, the Purchaser and the Trustee.
The
obligations of the Seller under this Agreement cannot be assigned or delegated
to a third party without the consent of the Purchaser which consent shall
be at
the Purchaser’s sole discretion, except that the Purchaser acknowledges and
agrees that the Seller may assign its obligations hereunder to any Person
into
which the Seller is merged or any corporation resulting from any merger,
conversion or consolidation to which the Seller is a party or any Person
succeeding to the business of the Seller. The parties hereto acknowledge
that
the Purchaser is acquiring the Mortgage Loans for the purpose of contributing
them to a trust that will issue a series of Certificates representing undivided
interests in such Mortgage Loans. As an inducement to the Purchaser to
purchase
the Mortgage Loans, the Seller acknowledges and consents to the assignment
by
the Purchaser to the Trustee of all of the Purchaser’s rights against the Seller
pursuant to this Agreement insofar as such rights relate to Mortgage Loans
transferred to the Trustee and to the enforcement or exercise of any right
or
remedy against the Seller pursuant to this Agreement by the Trustee. Such
enforcement of a right or remedy by the Trustee shall have the same force
and
effect as if the right or remedy had been enforced or exercised by the
Purchaser
directly.
Section
7.09 Survival.
The
representations and warranties set forth in Sections 3.01 and 3.02 and
the
provisions of Article V hereof shall survive the purchase of the Mortgage
Loans
hereunder.
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above
written.
FINANCIAL
ASSET SECURITIES CORP.,
as
Purchaser
By:________________________________
Name:
Title:
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., as Seller
By:_________________________________
Name:
Title:
SCHEDULE
I
MORTGAGE
LOANS
SEE
EXHIBIT D TO
POOLING
AND SERVICING AGREEMENT
EXHIBIT
1
LIST
OF
SERVICING AGREEMENTS
1.
Amended
and Restated Master Interim Servicing Agreement, dated as of January 1,
2006,
between Greenwich Capital Financial Products, Inc. and GMAC Mortgage,
LLC.
2.
Servicing
Agreement, dated as of January 1, 2006, between Greenwich Capital Financial
Products, Inc. and Central Mortgage Company.
3.
Servicing
Agreement, dated as of March 1, 2006, between Greenwich Capital Financial
Products, Inc. and Xxxxx Fargo Bank, N.A.
4.
Master
Mortgage Loan Purchase and Servicing Agreement, dated as of March 1, 2004,
between Greenwich Capital Financial Products, Inc. and Countrywide Home
Loans,
Inc., as amended by an Amendment Reg AB, dated as of December 1, 2005,
between
Greenwich Capital Financial Products, Inc. and Countrywide Home Loans,
Inc.
EXHIBIT
C-2
FORM
OF
ASSIGNMENT AND RECOGNITION AGREEMENT
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated February 1, 2007, (“Agreement”)
among
Greenwich Capital Financial Products, Inc. (“Assignor”),
Financial Asset Securities Corp. (“Assignee”)
and
Mortgage Network Inc. (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and a certain percentage
of
the
Class
C Certificates, the Class P Certificates and the Class FL Certificates
which
shall be registered in the name of Greenwich Capital Financial Products,
Inc. or
its designee, and of the mutual covenants herein contained, the parties
hereto
hereby agree as follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
all of the right, title and interest of the Assignor, as purchaser, in, to
and
under (a) those certain Mortgage Loans listed as being originated by the
Company
on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) that certain Master Mortgage Loan Purchase and Interim Servicing Agreement
dated as of May 1, 2006, as amended (the “Purchase
Agreement”),
between the Company as seller and interim servicer and the Assignor, as
purchaser (the “Purchaser”),
solely insofar as the Purchase Agreement relates to the Mortgage
Loans.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of
the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the Mortgage Loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
Recognition
of the Company
2. From
and
after the date hereof, the Company shall and does hereby recognize that the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
Soundview Home Loan Trust 2007-1 (the “Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of February
1,
2006 (the “Pooling
Agreement”),
among
the Assignee, Ocwen Loan Servicing, LLC as servicer (the “Servicer”),
Xxxxx
Fargo Bank, N.A as master servicer and trust administrator and Deutsche Bank
National Trust Company as trustee (including its successors in interest and
any
successor trustees under the Pooling Agreement, the “Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations
of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
Trust (including the Trustee, the Trust Administrator, the Master Servicer
and
the Servicer acting on the Trust’s behalf) shall have all the rights and
remedies available to the Assignor, insofar as they relate to the Mortgage
Loans, under the Purchase Agreement, including, without limitation, the
enforcement of the document delivery requirements and remedies with respect
to
breaches of representations and warranties set forth in the Purchase Agreement,
and shall be entitled to enforce all of the obligations of the Company
thereunder insofar as they relate to the Mortgage Loans, and (iv) all
references to the Purchaser (insofar as they relate to the rights, title
and
interest and, with respect to obligations of the Purchaser, only insofar
as they
relate to the enforcement of the representations, warranties and covenants
of
the Company) or the Custodian under the Purchase Agreement insofar as they
relate to the Mortgage Loans, shall be deemed to refer to the Trust (including
the Trustee, the Trust Administrator, the Master Servicer and the Servicer
acting on the Trust’s behalf). Neither the Company nor the Assignor shall amend
or agree to amend, modify, waiver, or otherwise alter any of the terms or
provisions of the Purchase Agreement which amendment, modification, waiver
or
other alteration would in any way affect the Mortgage Loans or the Company’s
performance under the Purchase Agreement with respect to the Mortgage Loans
without the prior written consent of the Trustee.
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
(b)
The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company of
this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or by
which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have
been
duly authorized by all necessary corporate action on part of the Company.
This
Agreement has been duly executed and delivered by the Company, and, upon
the due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(c)
No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Company in connection with the execution, delivery or performance by
the
Company of this Agreement; and
(d)
There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which
would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is
solvent.
4. Pursuant
to Section 12 of the Purchase Agreement, the Company hereby represents and
warrants, for the benefit of the Assignor, the Assignee and the Trust, that
the
representations and warranties set forth in Sections 7.01 of the Purchase
Agreement, are true and correct as of the date hereof as if such representations
and warranties were made on the date hereof, and that the representations
and
warranties set forth in Section 7.02 of the Purchase Agreement (attached
hereto
as Schedule I) are true and correct as of the related servicing transfer
date
from Company to Assignor, except that the representation and warranty set
forth
in Section 7.02(i) shall, for purposes of this Agreement, relate to the
Mortgage Loan Schedule attached hereto.
5. The
Assignor hereby makes the following representations, warranties and covenants
as
of the date hereof:
(a) To
the
best of the Assignor’s knowledge, nothing has occurred in the period of time
from the related servicing transfer date to the date hereof which would cause
such representation and warranties referred to in Section 4 herein to be
untrue
in any material respect as of the date hereof;
(b) Each
Mortgage Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive and/or usury lending laws;
(c) None
of
the mortgage loans are High Cost as defined by any applicable predatory and
abusive lending laws;
(e) No
Mortgage Loan is a High Cost Loan or a Covered Loan, as applicable (as such
terms are defined in the then current Standard & Poor’s LEVELS Glossary,
Appendix E); and
(d) No
mortgage loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act.
Remedies
for Breach of Representations and Warranties
6. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections
3 and 4
hereof shall be as set forth in Subsection 7.03 of the Purchase Agreement
as if they were set forth herein (including without limitation the repurchase
and indemnity obligations set forth therein).
Miscellaneous
7. This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
8. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of
the
Trustee.
9. This
Agreement shall inure to the benefit of (i) the successors and assigns of
the
parties hereto and (ii) the Trust (including the Trustee and the Servicer
acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or Company may
be merged or consolidated shall, without the requirement for any further
writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
10. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance of
the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
11. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
12. In
the
event that any provision of this Agreement conflicts with any provision of
the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
13. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their
duly authorized officers as of the date first above written.
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GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
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By:
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Name:
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Title:
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FINANCIAL
ASSET SECURITIES CORP.
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By:
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Name:
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Title:
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MORTGAGE
NETWORK INC.
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By:
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Name:
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Title:
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EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
SCHEDULE
I
Capitalized
terms used in this Schedule I but not defined in this Agreement shall have
the
meanings given to such terms in the Purchase Agreement.
(i) The
information set forth in the related Mortgage Loan Schedule is complete,
true
and correct;
(ii) The
Mortgage Loan is in compliance with all requirements set forth in the related
Confirmation, and the characteristics of the related Mortgage Loan Package
as
set forth in the related Confirmation are true and correct; provided, however,
that in the event of any conflict between the terms of any Confirmation and
this
Agreement, the terms of this Agreement shall control;
(iii) All
payments required to be made up to the close of business on the Closing Date
for
such Mortgage Loan under the terms of the Mortgage Note have been made; the
Seller has not advanced funds, or induced, solicited or knowingly received
any
advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required
by the
Mortgage Note or Mortgage; no Mortgage Loan is thirty (30) or more days
delinquent as of the Closing Date and there has been no delinquency, exclusive
of any period of grace, in any payment by the Mortgagor thereunder since
the
origination of the Mortgage Loan;
(iv) There
are
no delinquent taxes, ground rents, water charges, sewer rents, assessments,
insurance premiums, leasehold payments, including assessments payable in
future
installments or other outstanding charges affecting the related Mortgaged
Property;
(v) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, recorded in the
applicable public recording office if necessary to maintain the lien priority
of
the Mortgage, and which have been delivered to the Custodian; the substance
of
any such waiver, alteration or modification has been approved by the insurer
under the Primary Insurance Policy, if any, and has been approved by the
title
insurer, to the extent required by the related policy, and is reflected on
the
related Mortgage Loan Schedule. No instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in whole
or
in part, except in connection with an assumption agreement approved by
the
insurer under the Primary Insurance Policy, if any, and by the
title
insurer, to the extent required by the policy, and which assumption agreement
has been delivered to the Custodian and the terms of which are reflected
in the
related Mortgage Loan Schedule;
(vi) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or the
exercise of any right thereunder, render the Mortgage unenforceable, in whole
or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto.
Each
Prepayment Charge or penalty with respect to any Mortgage Loan is permissible,
enforceable and collectible under applicable federal, state and local
law;
(vii) All
buildings upon the Mortgaged Property are insured by a Qualified Insurer
acceptable to Xxxxxx Xxx and Xxxxxxx
Mac
against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, pursuant to
insurance policies providing coverage in an amount not less than the greatest
of
(i) 100% of the replacement cost of all improvements to the Mortgaged Property,
(ii) either (A) the outstanding principal balance of the Mortgage Loan with
respect to each first lien Mortgage Loan or (B) with respect to each second
lien
Mortgage Loan, the sum of the outstanding principal balance of the related
first
lien mortgage loan and the outstanding principal balance of the second lien
Mortgage Loan, or (iii) the amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property, and consistent
with the amount that would have been required as of the date of origination
in
accordance with the Underwriting Guidelines. All such insurance policies
contain
a standard mortgagee clause naming the Seller, its successors and assigns
as
mortgagee and all premiums thereon have been paid. If the Mortgaged Property
is
in an area identified on a Flood Hazard Map or Flood Insurance Rate Map issued
by the Federal Emergency Management Agency as having special flood hazards
(and
such flood insurance has been made available) a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to the requirements of
Xxxxxx
Mae and Xxxxxxx
Mac.
The
Mortgage obligates the Mortgagor thereunder to maintain all such insurance
at
the Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's
cost and expense and to seek reimbursement therefor from the
Mortgagor;
(viii) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
predatory and abusive lending, fair lending, consumer credit protection,
equal
credit opportunity, fair housing or disclosure laws applicable to the
origination and servicing of mortgage loans of a type similar to the Mortgage
Loans and applicable to any prepayment penalty associated with the Mortgage
Loans at origination have been complied with;
(ix) The
Mortgage has not been satisfied, cancelled, subordinated or rescinded, in
whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission
or
release;
(x) The
Mortgage (including any Negative Amortization which may arise thereunder)
is a
valid, existing and enforceable (A) first lien and first priority security
interest with respect to each Mortgage Loan which is indicated by the Seller
to
be a first lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien
and second priority security interest with respect to each Mortgage Loan
which
is indicated by the Seller to be a second lien (as reflected on the Mortgage
Loan Schedule), in either case, on the Mortgaged Property, including all
improvements on the Mortgaged Property subject only to (a) the lien of current
real property taxes and assessments not yet due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording being acceptable to mortgage lending
institutions generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan and which
do
not adversely affect the Appraised Value of the Mortgaged Property, (c) with
respect to each Mortgage Loan which is indicated by the Seller to be a second
lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) a first lien
on
the Mortgaged Property; and (d) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment, value
or
marketability of the related Mortgaged Property. Any security agreement,
chattel
mortgage or equivalent document related to and delivered in connection with
the
Mortgage Loan establishes and creates a valid, existing and enforceable first
or
second lien and first or second priority security interest (in each case,
as
indicated on the Mortgage Loan Schedule) on the property described therein
and
the Seller has full right to sell and assign the same to the Purchaser. The
Mortgaged Property was not, as of the date of origination of the Mortgage
Loan,
subject to a mortgage, deed of trust, deed to secure debt or other security
instrument creating a lien subordinate to the lien of the Mortgage;
(xi) The
Mortgage Note and the related Mortgage are genuine and each is the legal,
valid
and binding obligation of the maker thereof, enforceable in accordance with
its
terms;
(xii) All
parties to the Mortgage Note and the Mortgage had legal capacity to enter
into
the Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage,
and the Mortgage Note and the Mortgage have been duly and properly executed
by
such parties. The Mortgagor is a natural person;
(xiii) The
proceeds of the Mortgage Loan have been fully disbursed to or for the account
of
the Mortgagor and there is no obligation for the Mortgagee to advance additional
funds thereunder and any and all requirements as to completion of any on-site
or
off-site improvement and as to disbursements of any escrow funds therefor
have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and the recording of the Mortgage have been paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due to the
Mortgagee pursuant to the Mortgage Note or Mortgage;
(xiv) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage
Note
and the Mortgage and has full right to transfer and sell the Mortgage Loan
to
the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest;
(xv) All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) in compliance with any and all applicable
“doing business” and licensing requirements of the laws of the state wherein the
Mortgaged Property is located;
(xvi) The
Mortgage Loan is covered by an American Land Title Association (“ALTA”) lender’s
title insurance policy (which, in the case of an Adjustable Rate Mortgage
Loan
has an adjustable rate mortgage endorsement in the form of ALTA 6.0 or 6.1)
acceptable to Xxxxxx Xxx and Xxxxxxx
Mac,
issued
by a title insurer acceptable to Xxxxxx Mae and Xxxxxxx
Mac
and
qualified to do business in the jurisdiction where the Mortgaged Property
is
located, insuring (subject to the exceptions contained in (x)(a) and (b),
and
with respect to any second lien Mortgage Loan (c), above) the Seller, its
successors and assigns as to the first or second priority lien (as indicated
on
the Mortgage Loan Schedule) of the Mortgage in the original principal amount
of
the Mortgage Loan (including, if the Mortgage Loan provides for Negative
Amortization, the maximum amount of Negative Amortization in accordance with
the
Mortgage) and, with respect to any Adjustable Rate Mortgage Loan, against
any
loss by reason of the invalidity or unenforceability of the lien resulting
from
the provisions of the Mortgage providing for adjustment in the Mortgage Interest
Rate and Monthly Payment and Negative Amortization provisions of the Mortgage
Note. Additionally, such lender's title insurance policy affirmatively insures
ingress and egress to and from the Mortgaged Property, and against encroachments
by or upon the Mortgaged Property or any interest therein. The Seller is
the
sole insured of such lender's title insurance policy, and such lender’s title
insurance policy is in full force and effect and will be in full force and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender's title insurance policy, and
no
prior holder of the related Mortgage, including the Seller, has done, by
act or
omission, anything which would impair the coverage of such lender's title
insurance policy;
(xvii) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and the Seller has not
waived any default, breach, violation or event of acceleration. With respect
to
each second lien Mortgage Loan (i) the first lien mortgage loan is in full
force
and effect, (ii) there is no default, breach, violation or event of acceleration
existing under such first lien mortgage or the related mortgage note, (iii)
no
event which, with the passage of time or with notice and the expiration of
any
grace or cure period, would constitute a default, breach, violation or event
of
acceleration thereunder, (iv) either (A) the first lien mortgage contains
a
provision which allows or (B) applicable law requires, the mortgagee under
the
second lien Mortgage Loan to receive notice of, and affords such mortgagee
an
opportunity to cure any default by payment in full or otherwise under the
first
lien mortgage, (v) the related first lien does not provide for or permit
negative amortization under such first lien Mortgage Loan, and (vi) either
no
consent for the Mortgage Loan is required by the holder of the first lien
or
such consent has been obtained and is contained in the Mortgage
File;
(xviii) There
are
no mechanics' or similar liens or claims which have been filed for work,
labor
or material (and no rights are outstanding that under law could give rise
to
such lien) affecting the related Mortgaged Property which are or may be liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(xix) All
improvements which were considered in determining the Appraised Value of
the
related Mortgaged Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property, and no improvements on adjoining
properties encroach upon the Mortgaged Property;
(xx) The
Mortgage Loan was originated by the Seller or by a savings and loan association,
a savings bank, a commercial bank or similar banking institution which is
supervised and examined by a federal or state authority, or by a mortgagee
approved as such by the Secretary of HUD;
(xxi)
Principal payments on the Mortgage Loan commenced no more than sixty (60)
days
after the proceeds of the Mortgage Loan were disbursed. The Mortgage Loan
bears
interest at the Mortgage Interest Rate. With respect to each Mortgage Loan
which
is not a Negative Amortization Loan, the Mortgage Note is payable on the
first
day of each month in Monthly Payments, which, in the case of a Fixed Rate
Mortgage Loan, are sufficient to fully amortize the original principal balance
over the original term thereof (other than with respect to a Mortgage Loan
identified on the related Mortgage Loan Schedule as an interest-only Mortgage
Loan during the interest-only period or a Mortgage Loan which is identified
on
the related Mortgage Loan Schedule as a Balloon Mortgage Loan) and to pay
interest at the related Mortgage Interest Rate, and, in the case of an
Adjustable Rate Mortgage Loan, are changed on each Adjustment Date, and in
any
case, are sufficient to fully amortize the original principal balance over
the
original term thereof (other than with respect to a Mortgage Loan identified
on
the related Mortgage Loan Schedule as an interest-only Mortgage Loan during
the
interest-only period or a Mortgage Loan which is identified on the related
Mortgage Loan Schedule as a Balloon Mortgage Loan) and to pay interest at
the
related Mortgage Interest Rate. With respect to each Negative Amortization
Mortgage Loan, the related Mortgage Note requires a Monthly Payment which
is
sufficient during the period following each Payment Adjustment Date, to fully
amortize the outstanding principal balance as of the first day of such period
(including any Negative Amortization) over the then remaining term of such
Mortgage Note and to pay interest at the related Mortgage Interest Rate;
provided, that the Monthly Payment shall not increase to an amount that exceeds
107.5% of the amount of the Monthly Payment that was due immediately prior
to
the Payment Adjustment Date; provided, further, that the payment adjustment
cap
shall not be applicable with respect to the adjustment made to the Monthly
Payment that occurs in a year in which the Mortgage Loan has been outstanding
for a multiple of five (5) years and in any such year the Monthly Payment
shall
be adjusted to fully amortize the Mortgage Loan over the remaining term.
With
respect to each Mortgage Loan identified on the Mortgage Loan Schedule as
an
interest-only Mortgage Loan, the interest-only period shall not exceed ten
(10)
years (or such other period specified on the Mortgage Loan Schedule) and
following the expiration of such interest-only period, the remaining Monthly
Payments shall be sufficient to fully amortize the original principal balance
over the remaining term of the Mortgage Loan and to pay interest at the related
Mortgage Interest Rate. With respect to each Balloon Mortgage Loan, the Mortgage
Note requires a monthly payment which is sufficient to fully amortize the
original principal balance over the original term thereof and to pay interest
at
the related Mortgage Interest Rate and requires a final Monthly Payment
substantially greater than the preceding monthly payment which is sufficient
to
repay the remaining unpaid principal balance of the Balloon Mortgage Loan
at the
Due Date of such monthly payment. The Index for each Adjustable Rate Mortgage
Loan is as set forth on the Mortgage Loan Schedule. No Mortgage Loan is a
Convertible Mortgage Loan. No Balloon Mortgage Loan has an original stated
maturity of less than seven (7) years;
(xxii) The
origination, servicing and collection practices used with respect to each
Mortgage Note and Mortgage including, without limitation, the establishment,
maintenance and servicing of the Escrow Accounts and Escrow Payments, if
any,
since origination, have been in all respects legal, proper, prudent and
customary in the mortgage origination and servicing industry. The Mortgage
Loan
has been serviced by the Seller and any predecessor servicer in accordance
with
the terms of the Mortgage Note and Accepted Servicing Practices. With respect
to
escrow deposits and Escrow Payments, if any, all such payments are in the
possession of, or under the control of, the Seller and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or Escrow Payments
or
other charges or payments due the Seller have been capitalized under any
Mortgage or the related Mortgage Note and no such escrow deposits or Escrow
Payments are being held by the Seller for any work on a Mortgaged Property
which
has not been completed;
(xxiii) The
Mortgaged Property is free of damage and waste and there is no proceeding
pending for the total or partial condemnation thereof;
(xxiv) The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (a) in the case of a Mortgage designated as
a deed
of trust, by trustee's sale, and (b) otherwise by judicial foreclosure. The
Mortgaged Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the Mortgagor has not filed for protection under
applicable bankruptcy laws. There is no homestead or other exemption available
to the Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage. The
Mortgagor has not notified the Seller and the Seller has no knowledge of
any
relief requested or allowed to the Mortgagor under the Servicemembers’ Civil
Relief Act;
(xxv) The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
in
effect at the time the Mortgage Loan was originated which underwriting standards
satisfy the standards of Xxxxxx Xxx or Xxxxxxx
Mac;
and the
Mortgage Note and Mortgage are on forms acceptable to Xxxxxx Mae or Xxxxxxx
Mac;
(xxvi) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(x) above;
(xxvii) The
Mortgage File contains an appraisal of the related Mortgaged Property which
satisfied the standards of Xxxxxx Mae and Xxxxxxx
Mac,
was on
appraisal form 1004 or form 2055 with an interior inspection and was made
and
signed, prior to the approval of the Mortgage Loan application, by a qualified
appraiser, duly appointed by the Seller, who had no interest, direct or indirect
in the Mortgaged Property or in any loan made on the security thereof, whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan
and who met the minimum qualifications of Xxxxxx Mae and Xxxxxxx
Mac.
Each
appraisal of the Mortgage Loan was made in accordance with the relevant
provisions of the Financial Institutions Reform, Recovery, and Enforcement
Act
of 1989;
(xxviii) In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified
under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will
become
payable by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor;
(xxix) No
Mortgage Loan contains provisions pursuant to which Monthly Payments are
(a)
paid or partially paid with funds deposited in any separate account established
by the Seller, the Mortgagor, or anyone on behalf of the Mortgagor, (b) paid
by
any source other than the Mortgagor or (c) contains any other similar provisions
which may constitute a “buydown” provision. The Mortgage Loan is not a graduated
payment mortgage loan and the Mortgage Loan does not have a shared appreciation
or other contingent interest feature;
(xxx) The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of fixed rate mortgage loans in the case of Fixed Rate Mortgage Loans, and
adjustable rate mortgage loans in the case of Adjustable Rate Mortgage Loans
and
rescission materials with respect to Refinanced Mortgage Loans, and such
statement is and will remain in the Mortgage File;
(xxxi) No
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property or (b) facilitating the trade-in or exchange of a
Mortgaged Property;
(xxxii) The
Seller has no knowledge of any circumstances or condition with respect to
the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor's credit
standing that can reasonably be expected to cause the Mortgage Loan to be
an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value of the Mortgage Loan;
(xxxiii) No
Mortgage Loan had an LTV or a CLTV at origination in excess of 95%. Each
Mortgage Loan with an LTV at origination in excess of 80% is and will be
subject
to a Primary Insurance Policy, issued by a Qualified Insurer, which insures
that
portion of the Mortgage Loan in excess of the portion of the Appraised Value
of
the Mortgaged Property as required by Xxxxxx Mae. With respect to any Mortgage
Loan which allows Negative Amortization, such Primary Insurance Policy contains
provisions to cover the potential Negative Amortization of such Mortgage
Loan.
All provisions of such Primary Insurance Policy have been and are being complied
with, such policy is in full force and effect, and all premiums due thereunder
have been paid. Any Mortgage subject to any such Primary Insurance Policy
obligates the Mortgagor thereunder to maintain such insurance and to pay
all
premiums and charges in connection therewith. The Mortgage Interest Rate
for the
Mortgage Loan does not include any such insurance premium. No Mortgage Loan
is
subject to a lender paid primary mortgage insurance policy;
(xxxiv) The
Mortgaged Property is lawfully occupied under applicable law; all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use
and
occupancy of the same, including but not limited to certificates of occupancy,
have been made or obtained from the appropriate authorities;
(xxxv) No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to a Mortgage Loan has taken place on the part of any person, including
without limitation the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan;
(xxxvi) The
Assignment of Mortgage is in recordable form, except for the name of the
assignee which is blank, and is acceptable for recording under the laws of
the
jurisdiction in which the Mortgaged Property is located;
(xxxvii) Any
principal advances made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first or second (as indicated
on
the Mortgage Loan Schedule) lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest
or by
other title evidence acceptable to Xxxxxx Xxx and Xxxxxxx
Mac.
The
consolidated principal amount does not exceed the original principal amount
of
the Mortgage Loan plus any Negative Amortization;
(xxxviii) If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or a
unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of Xxxxxx Mae and Xxxxxxx
Mac;
(xxxix) The
source of the down payment with respect to each Mortgage Loan has been fully
verified by the Seller;
(xl) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(xli) The
Mortgaged Property is in material compliance with all applicable environmental
laws pertaining to environmental hazards including, without limitation,
asbestos, and neither the Seller nor, to the Seller’s knowledge, the related
Mortgagor, has received any notice of any violation or potential violation
of
such law;
(xlii) The
Seller shall, at its own expense, cause each Mortgage Loan to be covered
by a
Tax Service Contract which is assignable to the Purchaser or its designee;
provided however, that if the Seller fails to purchase such Tax Service
Contract, the Seller shall be required to reimburse the Purchaser for all
costs
and expenses incurred by the Purchaser in connection with the purchase of
any
such Tax Service Contract;
(xliii) Each
Mortgage Loan is covered by a Flood Zone Service Contract which is assignable
to
the Purchaser or its designee or, for each Mortgage Loan not covered by such
Flood Zone Service Contract, the Seller agrees to purchase such Flood Zone
Service Contract;
(xliv) No
Mortgage Loan is (a)(1) subject to the provisions of the Homeownership and
Equity Protection Act of 1994 as amended (“HOEPA”) or (2) has an “annual
percentage rate” or “total points and fees” (as each such term is defined under
HOEPA) payable by the Mortgagor that equal or exceed the applicable thresholds
defined under HOEPA (as defined in 12 CFR 226.32 (a)(1)(i) and (ii)), (b)
a
“high cost” mortgage loan, “covered” mortgage loan, “high risk home” mortgage
loan, or “predatory” mortgage loan or any other comparable term, no matter how
defined under any federal, state or local law, (c) subject to any comparable
federal, state or local statutes or regulations, or any other statute or
regulation providing for heightened regulatory scrutiny or assignee liability
to
holders of such mortgage loans, or (d) a High Cost Loan or Covered Loan,
as
applicable (as such terms are defined in the current Standard & Poor’s
LEVELS® Glossary Revised, Appendix E);
(xlv) No
predatory, abusive, or deceptive lending practices, including but not limited
to, the extension of credit to a Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a Mortgagor
which has no apparent benefit to the Mortgagor, were employed in connection
with
the origination of the Mortgage Loan. Each Mortgage Loan is in compliance
with
the anti-predatory lending eligibility for purchase requirements of the Xxxxxx
Mae Guides;
(xlvi) The
debt-to-income ratio of the related Mortgagor was not greater than 60% at
the
origination of the related Mortgage Loan;
(xlvii) No
Mortgagor was required to purchase any credit insurance product (e.g., life,
mortgage, disability, accident, unemployment or health insurance product)
or
debt cancellation agreement as a condition of obtaining the extension of
credit.
No Mortgagor obtained a prepaid single premium credit insurance policy (e.g.,
life, mortgage, disability, accident, unemployment or health insurance product)
or debt cancellation agreement in connection with the origination of the
Mortgage Loan. No proceeds from any Mortgage Loan were used to purchase single
premium credit insurance policies or debt cancellation agreements as part
of the
origination of, or as a condition to closing, such Mortgage Loan;
(xlviii) The
Mortgage Loans were not selected from the outstanding one- to four-family
mortgage loans in the Seller’s portfolio as to which the representations and
warranties set forth in this Agreement could be made at the related Closing
Date
in a manner so as to affect adversely the interests of the
Purchaser;
(xlix) The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent
of
the mortgagee thereunder;
(l) The
Mortgage Loan complies with all applicable consumer credit statutes and
regulations, including, without limitation, the respective Uniform Consumer
Credit Code laws in effect in Alabama, Colorado, Idaho, Indiana, Iowa, Kansas,
Maine, Oklahoma, South Carolina, Utah, West Virginia and Wyoming, has been
originated by a properly licensed entity or an entity that is exempt from
licensing, and in all other respects, complies with all of the material
requirements of any such applicable laws;
(li) The
information set forth in the Mortgage Loan Schedule as to Prepayment Charges
is
complete, true and correct in all material respects and each Prepayment Charge
is permissible, enforceable and collectable in accordance with its terms
upon
the Mortgagor’s full and voluntary principal payment under applicable
law;
(lii) The
Mortgage Loan was not prepaid in full prior to the Closing Date and the Seller
has not received notification from a Mortgagor that a prepayment in full
shall
be made after the Closing Date;
(liii) No
Mortgage Loan is secured by cooperative housing, commercial property or mixed
use property;
(liv) Each
Mortgage Loan is eligible for sale in the secondary market or for inclusion
in a
Securitization Transaction without unreasonable credit enhancement;
(lv) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage Loans
are
subject to a Prepayment Charge. With respect to any Mortgage Loan that contains
a provision permitting imposition of a premium upon a prepayment prior to
maturity: (a) the Mortgage Loan provides some benefit to the Mortgagor (e.g.
a
rate or fee reduction) in exchange for accepting such Prepayment Charge;
(b) the
Mortgage Loan’s originator had a written policy of offering the Mortgagor, or
requiring third-party brokers to offer the Mortgagor, the option of obtaining
a
Mortgage Loan that did not require payment of such a Prepayment Charge; (c)
the
Prepayment Charge was adequately disclosed to the Mortgagor pursuant to
applicable state and federal law; (d) the duration of the Prepayment Charge
shall not exceed three (3) years from the date of the Mortgage Note; and
(e)
such Prepayment Charge shall not be imposed in any instance where the Mortgage
Loan is accelerated or paid off in connection with the workout of a delinquent
Mortgage or due to the Mortgagor’s default, notwithstanding that the terms of
the Mortgage Loan or state or federal law might permit the imposition of
such
Prepayment Charge;
(lvi) The
Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the Bank Secrecy Act, as amended
by
the USA Patriot Act of 2001 (collectively, the “Anti-Money Laundering Laws”);
the Seller has established an anti-money laundering compliance program as
required by the Anti-Money Laundering Laws, has conducted the requisite due
diligence in connection with the origination of each Mortgage Loan for purposes
of the Anti-Money Laundering Laws, including with respect to the legitimacy
of
the applicable Mortgagor and the origin of the assets used by the said Mortgagor
to purchase the Mortgaged Property, and maintains, and will maintain, sufficient
information to identify and verify the identification of the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws. No Mortgage Loan
is
subject to nullification pursuant to Executive Order 13224 (the “Executive
Order”) or the regulations promulgated by the Office of Foreign Assets Control
of the United States Department of the Treasury (the “OFAC Regulations”) or in
violation of the Executive Order or the OFAC Regulations, and no Mortgagor
is
subject to the provisions of such Executive Order or the OFAC Regulations
nor
listed as a “specially designated national or blocked person” for purposes of
the OFAC Regulations;
(lvii) The
Mortgagor was not encouraged or required to select a mortgage loan product
offered by the Mortgage Loan’s originator which is a higher cost product
designed for less creditworthy borrowers, taking into account such facts
as,
without limitation, the Mortgage Loan’s requirements and the Mortgagor’s credit
history, income, assets and liabilities. If, at the time of loan application,
the Mortgagor may have qualified for a lower cost credit product then offered
by
any mortgage lending affiliate of the Mortgage Loan’s originator, the Mortgage
Loan’s originator referred the Mortgagor’s application to such affiliate for
underwriting consideration. With respect to any Mortgage Loan, the Mortgagor
was
assigned the highest credit grade available with respect to a mortgage loan
product offered by such Mortgage Loan’s originator, based on a comprehensive
assessment of risk factors, including the Mortgagor’s credit
history;
(lviii) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such extension of credit. The
methodology employed objective criteria that related such facts as, without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology, the Mortgage
Loan’s originator made a reasonable determination that at the time of
origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan;
(lix) With
respect to each Mortgage Loan, the Seller has fully and accurately furnished
complete information (i.e., favorable and unfavorable) on the related borrower
credit files to Equifax, Experian and Trans Union Credit Information Company,
in
accordance with the Fair Credit Reporting Act and its implementing regulations,
on a monthly basis and, for each Mortgage Loan, the Seller will furnish,
in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information on its borrower credit files to Equifax,
Experian, and Trans Union Credit Information Company, on a monthly
basis;
(lx) All
points and fees related to each Mortgage Loan were disclosed in writing to
the
related Borrower in accordance with applicable state and federal laws and
regulations. No related Borrower was charged “points and fees” (whether or not
financed) in an amount greater than (a) $1,000 or (b) 5% of the principal
amount
of such loan, whichever is greater, such 5% limitation is calculated in
accordance with Xxxxxx Mae’s anti-predatory lending requirements as set forth in
the Xxxxxx Mae Guides. For purposes of this representation, “points and fees”
(a) include origination, underwriting, broker and finder’s fees and other
charges that the lender imposed as a condition of making the loan, whether
they
are paid to the lender or a third party, and (b) exclude bona fide discount
points, fees paid for actual services rendered in connection with the
origination of the mortgage (such as attorneys’ fees, notaries fees and fees
paid for property appraisals, credit reports, surveys, title examinations
and
extracts, flood and tax certifications, and home inspections); the cost of
mortgage insurance or credit-risk price adjustments; the costs of title,
hazard,
and flood insurance policies; state and local transfer taxes or fees; escrow
deposits for the future payment of taxes and insurance premiums; and other
miscellaneous fees and charges that, in total, do not exceed 0.25 percent
of the
loan amount. All points, fees and charges (including finance charges) and
whether or not financed, assessed, collected or to be collected in connection
with the origination and servicing of each Mortgage Loan were disclosed in
writing to the related Mortgagor in accordance with applicable state and
federal
laws and regulations;
(lxi) The
Seller will transmit full-file credit reporting data for each Mortgage Loan
pursuant to Xxxxxx Xxx Guide Announcement 95-19 and for each Mortgage Loan,
Seller agrees it shall report one of the following statuses each month as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(lxii) With
respect to any Mortgage Loan which is secured by manufactured housing, if such
Mortgage Loans are permitted hereunder, such Mortgage Loan satisfies the
requirements for inclusion in residential mortgage backed securities
transactions rated by Standard & Poor's Ratings Services and such
manufactured housing will be the principal residence of the Mortgagor upon
the
origination of the Mortgage Loan. With respect to any second lien Mortgage
Loan,
such lien is on a one- to four-family residence that is (or will be) the
principal residence of the Mortgagor upon the origination of the second lien
Mortgage Loan;
(lxiii) Each
Mortgage Loan constitutes a “qualified mortgage” under
Section 860G(a)(3)(A) of the Code and Treasury Regulation
Section 1.860G-2(a)(1);
(lxiv) No
Mortgage Loan is secured by real property or secured by a manufactured home
located in the state of Georgia unless (x) such Mortgage Loan was originated
prior to October 1, 2002 or after March 6, 2003, or (y) the property securing
the Mortgage Loan is not, nor will be, occupied by the Mortgagor as the
Mortgagor’s principal dwelling. No Mortgage Loan is a “High Cost Home Loan” as
defined in the Georgia Fair Lending Act, as amended (the “Georgia Act”). Each
Mortgage Loan that is a “Home Loan” under the Georgia Act complies with all
applicable provisions of the Georgia Act. No Mortgage Loan secured by owner
occupied real property or an owner occupied manufactured home located in
the
State of Georgia was originated (or modified) on or after October 1, 2002
through and including March 6, 2003;
(lxv) No
Mortgage Loan is a “High-Cost” loan as defined under the New York Banking Law
Section 6-1, effective as of April 1, 2003;
(lxvi) No
Mortgage Loan (a) is secured by property located in the State of New York;
(b)
had an unpaid principal balance at origination of $300,000 or less, and (c)
has
an application date on or after April 1, 2003, the terms of which Mortgage
Loan
equal or exceed either the APR or the points and fees threshold for “high-cost
home loans”, as defined in Section 6-1 of the New York State Banking
Law;
(lxvii) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 or 2003);
(lxviii) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
(lxix) No
Mortgage Loan secured by property located in the State of Nevada is a “home
loan” as defined in the Nevada Assembly Xxxx No. 284;
(lxx) No
Mortgage Loan is a “manufactured housing loan” or “home improvement home loan”
pursuant to the New Jersey Home Ownership Act. No Mortgage Loan is a “High-Cost
Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22
et
seq.);
(lxxi) No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership
and
Equity protection Act;
(lxxii) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et
seq.);
(lxxiii) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.);
(lxxiv) No
Loan
that is secured by property located within the State of Maine meets the
definition of a (i) “high-rate, high-fee” mortgage loan under Article VIII,
Title 9-A of the Maine Consumer Credit Code or (ii) “High-Cost Home Loan” as
defined under the Maine House Xxxx 383 X.X. 494, effective as of September
13,
2003;
(lxxv) With
respect to any Loan for which a mortgage loan application was submitted by
the
Mortgagor after April 1, 2004, no such Loan secured by Mortgaged Property
in the
State of Illinois which has a Loan Interest Rate in excess of 8.0% per annum
has
lender-imposed fees (or other charges) in excess of 3.0% of the original
principal balance of the Loan;
(lxxvi) No
Mortgage Loan is a “High Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C). No Mortgage Loan secured by a Mortgaged Property
located in the Commonwealth of Massachusetts was made to pay off or refinance
an
existing loan or other debt of the related borrower (as the term “borrower” is
defined in the regulations promulgated by the Massachusetts Secretary of
State
in connection with Massachusetts House Xxxx 4880 (2004)) unless either (1)
(a)
the related Mortgage Interest Rate (that would be effective once the
introductory rate expires, with respect to Adjustable Rate Mortgage Loans)
did
or would not exceed by more than 2.25% the yield on United States Treasury
securities having comparable periods of maturity to the maturity of the related
Mortgage Loan as of the fifteenth day of the month immediately preceding
the
month in which the application for the extension of credit was received by
the
related lender or (b) the Mortgage Loan is an “open-end home loan” (as such term
is used in the Massachusetts House Xxxx 4880 (2004)) and the related Mortgage
Note provides that the related Mortgage Interest Rate may not exceed at any
time
the Prime rate index as published in The Wall Street Journal plus a margin
of
one percent, or (2) such Mortgage Loan is in the "borrower's interest," as
documented by a "borrower's interest worksheet" for the particular Mortgage
Loan, which worksheet incorporates the factors set forth in Massachusetts
House
Xxxx 4880 (2004) and the regulations promulgated thereunder for determining
"borrower's interest," and otherwise complies in all material respects with
the
laws of the Commonwealth of Massachusetts;
(lxxvii) No
Loan
is a “High Cost Home Loan” as defined by the Indiana Home Loan Practices Act,
effective January 1, 2005 ( Ind. Code Xxx. §§ 24-9-1 et seq.);
(lxxviii) The
Mortgagee has not made or caused to be made any payment in the nature of
an
“average” or “yield spread premium” to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(lxxix) The
sale
or transfer of the Mortgage Loan by the Seller complies with all applicable
federal, state, and local laws, rules, and regulations governing such sale
or
transfer, including, without limitation, the Fair and Accurate Credit
Transactions Act (“FACT Act”) and the Fair Credit Reporting Act, each as may be
amended from time to time, and the Seller has not received any actual or
constructive notice of any identity theft, fraud, or other misrepresentation
in
connection with such Mortgage Loan or any party thereto;
(lxxx) With
respect to each MOM Loan, a MIN has been assigned by MERS and such MIN is
accurately provided on the Mortgage Loan Schedule. The related Assignment
of
Mortgage to MERS has been duly and properly recorded, or has been delivered
for
recording to the applicable recording office;
(lxxxi) With
respect to each MOM Loan, Seller has not received any notice of liens or
legal
actions with respect to such Mortgage Loan and no such notices have been
electronically posted by MERS;
(lxxxii) With
respect to each second lien Mortgage Loan, either no consent for the Mortgage
Loan is required by the holder of the first lien or such consent has been
obtained and is contained in the Mortgage File; and
(lxxxiii) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising
out of
or relating in any way to the Mortgage Loan transaction. No Mortgage Loan
is
subject to any mandatory arbitration.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated February 1, 2007, (“Agreement”)
among
Greenwich Capital Financial Products, Inc. (“Assignor”),
Financial Asset Securities Corp. (“Assignee”)
and
Ameriquest Mortgage Company (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and a certain percentage
of
the
Class
C Certificates, the Class P Certificates and the Class FL Certificates
which
shall be registered in the name of Greenwich Capital Financial Products,
Inc. or
its designee, and of the mutual covenants herein contained, the parties
hereto
hereby agree as follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser,
in, to
and under (a) those certain Mortgage Loans listed as being originated by
the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master Mortgage Loan Purchase
and
Interim Servicing Agreement dated as of June 1, 2006, as amended (the
“Purchase
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement relates
to the
Mortgage Loans and (y) other than as provided below with respect to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the Mortgage Loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
Recognition
of the Company
2. From
and
after the date hereof, the Company shall and does hereby recognize that
the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
Soundview Home Loan Trust 2007-1 (the “Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of February
1,
2007 (the “Pooling
Agreement”),
among
the
Assignee, Ocwen Loan Servicing, LLC as servicer (including their successors
in
interest and any successor servicers under the Pooling Agreement, a
“Servicer”),
Xxxxx
Fargo Bank, N.A. as master servicer and trust administrator and Deutsche
Bank
National Trust Company, as trustee (including its successors in interest
and any
successor trustees under the Pooling Agreement, the “Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations
of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
Trust (including
the Trustee, the Trust Administrator, the Master Servicer and the Servicer
acting on the Trust’s behalf) shall
have all the rights and remedies available to the Assignor, insofar as
they
relate to the Mortgage Loans, under the Purchase Agreement, including,
without
limitation, the enforcement of the document delivery requirements and remedies
with respect to breaches of representations and warranties set forth in
the
Purchase Agreement, and shall be entitled to enforce all of the obligations
of
the Company thereunder insofar as they relate to the Mortgage Loans, and
(iv) all references to the Purchaser (insofar as they relate to the rights,
title and interest and, with respect to obligations of the Purchaser, only
insofar as they relate to the enforcement of the representations, warranties
and
covenants of the Company) or the Custodian under the Purchase Agreement
insofar
as they relate to the Mortgage Loans, shall be deemed to refer to the Trust
(including the Trustee, the Trust Administrator, the Master Servicer and
the
Servicer acting on the Trust’s behalf). Neither the Company nor the Assignor
shall amend or agree to amend, modify, waiver, or otherwise alter any of
the
terms or provisions of the Purchase Agreement which amendment, modification,
waiver or other alteration would in any way affect the Mortgage Loans or
the
Company’s performance under the Purchase Agreement with respect to the Mortgage
Loans without the prior written consent of the Trustee.
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing as a
corporation under the laws of the State of Delaware;
(b) The
Company has the full power and authority to execute, deliver and perform,
and to
enter into and consummate, all transactions contemplated by this Agreement.
The
Company has duly authorized the execution, delivery and performance of
this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Assignor or Assignee
constitutes a legal, valid and binding obligation of the Company, enforceable
against it in accordance with its terms except as the enforceability thereof
may
be limited by bankruptcy, insolvency or reorganization;
(c) The
execution and delivery of this Agreement by the Company and the performance
of
and compliance with the terms of this Agreement will not violate the Company’s
articles of incorporation or by-laws or constitute a default under or result
in
a breach or acceleration of, any material contract, agreement or other
instrument to which the Company is a party or which may be applicable to
the
Company or its assets;
(d) The
Company is not in violation of, and the execution and delivery of this
Agreement
by the Company and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or
decree
of any court or any order or regulation of any federal, state, municipal
or
governmental agency having jurisdiction over the Company or its assets,
which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Company or its
assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(e) The
Company does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this Agreement;
(f) There
are
no actions or proceedings against, investigations known to it of, the Company
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement or (B) that might prohibit or materially and
adversely affect the performance by the Company of its obligations under,
or
validity or enforceability of, this Agreement or the Mortgage Loans;
and
(g) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Company
of,
or compliance by the Company with, this Agreement or the consummation of
the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained.
4. Pursuant
to Section 11 of the Purchase Agreement, the Company hereby represents
and
warrants, for the benefit of the Assignor, the Assignee and the Trust,
that the
representations and warranties set forth in Sections 7.01 and 7.03 (attached
hereto as Schedule I) of the Purchase Agreement, are true and correct as
of the
date hereof as if such representations and warranties were made on the
date
hereof or such earlier date as specified in any such representation and
warranty.
5. The
Assignor hereby makes the following representations, warranties and covenants
as
of the date hereof:
(a) With
respect to the representations and warranties set forth in Section 7.03
(a) (2),
Section 7.03 (a) (3), Section 7.03 (a) (4), Section 7.03 (a) (5), Section
7.03
(a) (7), Section 7.03 (a) (9), Section 7.03 (a) (15), Section 7.03 (a)
(16),
Section 7.03 (a) (18), Section 7.03 (a) (19), Section 7.03 (a) (20), Section
7.03 (a) (25), Section 7.03 (a) (34), Section 7.03 (a) (41) and Section
7.03 (a)
(50) to the best of the Assignor’s knowledge, nothing has occurred in the period
of time since the whole loan purchase date to the date hereof which would
cause
such representations and warranties to be untrue in any material respect
as of
the date hereof;
(b) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(c) None
of
the mortgage loans are High Cost as defined by any applicable predatory
and
abusive and/or usury lending laws;
(d) No
Mortgage Loan is a High Cost Loan or a Covered Loan, as applicable (as
such
terms are defined in the then current Standard & Poor’s LEVELS Glossary,
Appendix E);
(e) No
mortgage loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act.
(f) With
respect to the Group I Mortgage Loans:
(i)
There
are
no manufactured housing units;
| (ii) |
There
are no first lien mortgage loans that have an original principal
balance
that exceeds the applicable Xxxxxxx Mac loan limits;
|
| (iii) |
With
respect to any subordinate lien mortgage loans, such lien is
on a one- to
four- family residence that is the principal residence of the
boffower.
|
| (iv) |
No
subordinate lien mortgage loan has an original principal balance
that
exceeds one-half of the one-unit limitation for first lien mortgage
loans,
without regard to the number of
units;
|
| (v) |
The
original principal balance of the first lien mortgage loan plus
the
original principal balance of any subordinate lien mortgage loans
relating
to the same mortgaged property does not exceed the applicable
Xxxxxxx Mac
loan limit for first lien mortgage loans for that property
type.
|
Remedies
for Breach of Representations and Warranties
6. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including
the Trustee, the Trust Administrator, the Master Servicer and the Servicer
acting on the Trust’s behalf)
in
connection with any breach of the representations and warranties made by
the
Company set forth in Sections 3 and 4 hereof shall be as set forth in Subsection
7.04 of the Purchase Agreement as if they were set forth herein (including
without limitation the repurchase and indemnity obligations set forth therein);
provided, however, with respect to any representation of the Company which
materially and adversely affects the interests of any Prepayment Charge,
the
Company shall pay the amount of the scheduled Prepayment Charge by remitting
such amount to the Servicer for deposit into the Collection Account in
respect
of such Prepayment Charge.
The
Assignor hereby acknowledges and agrees that the remedies available to
the
Assignee and the Trust (including the Trustee, the Trust Administrator,
the
Master Servicer and the Servicer acting on the Trust’s behalf) in connection
with any breach of the representations and warranties made by the Assignor
set
forth in Section 5 hereof shall be as set forth in Section 2.03 of the
Pooling
Agreement as if they were set forth herein.
Miscellaneous
7. This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
8. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of
the
Trustee.
9. This
Agreement shall inure to the benefit of (i) the successors and assigns
of the
parties hereto and (ii) the Trust (including the Trustee, the Trust
Administrator, the Master Servicer and the Servicer acting on the Trust’s
behalf). Any entity into which Assignor, Assignee or Company may be merged
or
consolidated shall, without the requirement for any further writing, be
deemed
Assignor, Assignee or Company, respectively, hereunder.
10. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
11. This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
12. In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
13. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
By:________________________________
Name:
Title:
FINANCIAL
ASSET SECURITIES CORP.
By:
________________________________
Name:
Title:
AMERIQUEST
MORTGAGE COMPANY
By:
________________________________
Name:
Title:
EXHIBIT
A
Mortgage
Loan Schedule
SCHEDULE
I
Capitalized
terms used in this Schedule I but not defined in this Agreement shall have
the
meanings given to such terms in the Purchase Agreement.
1. The
information set forth in the Mortgage Loan Schedule is complete, true and
correct as of the related Cut-off Date;
2. As
of the
Closing Date, the Mortgage Loan is in compliance with all requirements
set forth
in the Term Sheet;
3. As
of the
related Closing Date, the Company has not advanced funds, or induced, solicited
or knowingly received any advance of funds from a party other than the
owner of
the related Mortgaged Property, directly, for the payment of any amount
required
by the Mortgage Note or Mortgage, and no Mortgage Loan has been delinquent
for
more than thirty (30) days in the prior twelve (12) months;
4. As
of the
related Closing Date, there are no delinquent taxes or insurance premiums
affecting the related Mortgaged Property;
5. As
of the
related Closing Date, the terms of the Mortgage Note and the Mortgage have
not
been impaired, waived, altered or modified in any respect, except by written
instruments, recorded in the applicable public recording office if necessary
to
maintain the lien priority of the Mortgage, and which have been delivered
to the
Custodian; the substance of any such waiver, alteration or modification
has been
approved by the title insurer, to the extent required by the related policy,
and
is reflected on the Mortgage Loan Schedule. No instrument of waiver, alteration
or modification has been executed, and no Mortgagor has been released,
in whole
or in part, except in connection with an assumption agreement approved
by title
insurer, to the extent required by the policy, and which assumption agreement
has been delivered to the Custodian and the terms of which are reflected
in the
Mortgage Loan Schedule;
6. The
Mortgage Note and the Mortgage are not subject to any valid right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or
the
exercise of any right thereunder, render the Mortgage unenforceable, in
whole or
in part, or subject to any such valid right of rescission, set-off, counterclaim
or defense, including the defense of usury and no such valid right of
rescission, set-off, counterclaim or defense has been asserted with respect
thereto.
7. As
of the
related Closing Date, all buildings upon the Mortgaged Property are insured
by a
generally acceptable insurer against loss by fire, hazards of extended
coverage
and such other hazards as are customary in the area where the Mortgaged
Property
is located, in an amount not less than the least of (i) 100% of the replacement
cost of all improvements to the Mortgaged Property, (ii) either (A) the
outstanding principal balance of the Mortgage Loan with respect to each
first
lien Mortgage Loan or (B) with respect to each second lien Mortgage Loan,
the
sum of the outstanding principal balance of the related first lien mortgage
loan
and the outstanding principal balance of the second lien Mortgage Loan,
(iii)
the amount necessary to avoid the operation of any co-insurance provisions
with
respect to the Mortgaged Property, or (iv) the amount necessary to fully
compensate for any damage or loss to the improvements that are a part of
such
property on a replacement cost basis. All such insurance policies contain
a
standard mortgagee clause naming the originator, its successors and assigns
as
mortgagee and all premiums thereon are paid current. If upon origination
of the
Mortgage Loan, the Mortgaged Property was in an area identified on a Flood
Hazard Map or Flood Insurance Rate Map issued by the Federal Emergency
Management Agency as having special flood hazards (and such flood insurance
has
been made available) a flood insurance policy meeting the requirements
of the
current guidelines of the Federal Insurance Administration is in effect
which
policy conforms to the requirements of Xxxxxx Xxx and Xxxxxxx Mac. Except
as may
otherwise be limited by applicable law, the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor’s cost and expense,
and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at Mortgagor’s cost and expense and to seek
reimbursement therefor from the Mortgagor;
8. Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity, disclosure laws and/or all
predatory and abusive lending laws applicable to the origination and servicing
of the Mortgage Loan have been complied with. Any and all disclosure statements
required to be made by the Mortgagor relating to such requirements are
and will
remain in the Mortgage File;
9. As
of the
related Closing Date, the Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part, and the Mortgaged Property
has
not been released from the lien of the Mortgage, in whole or in part, nor
has
any instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release;
10. The
Mortgage creates a valid first or second lien, as applicable, in the related
Mortgaged Property as reflected on the Mortgage Loan Schedule;
11. The
related Mortgage is a valid, existing and enforceable first or second lien,
as
applicable and as indicated on the Mortgage Loan Schedule, on the related
Mortgaged Property, including all improvements on the related Mortgaged
Property
subject only to (i) the lien of current real property taxes and assessments
not
yet due and payable, (ii) covenants, conditions and restrictions, rights
of way,
easements, mineral right reservations and other matters of the public record
as
of the date of recording of such Mortgage being acceptable to mortgage
lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the originator of the related Mortgage Loan
and
which do not adversely affect the Appraised Value of the related Mortgaged
Property and (iii) other matters to which like properties are commonly
subject
which do not materially interfere with the benefits of the security intended
to
be provided by the related Mortgage or the use, enjoyment, value (as determined
by Appraised Value) or marketability of the related Mortgaged Property.
Any
security agreement, chattel mortgage or equivalent document related to
and
delivered in connection with the Mortgage Loan establishes and creates
a valid,
subsisting, enforceable and perfected first or second (as indicated on
the
Mortgage Loan Schedule) lien and first or second (as indicated on the Mortgage
Loan Schedule) priority security interest on the property described therein,
and
the Company has the full right to sell and assign the same to the Purchaser.
12. The
Mortgage Note and the related Mortgage are genuine and each is the legal,
valid
and binding obligation of the maker thereof, enforceable in accordance
with its
terms;
13. All
parties to the Mortgage Note and the Mortgage had legal capacity to enter
into
the Mortgage Loan and to execute and deliver the Mortgage Note and the
Mortgage,
and the Mortgage Note and the Mortgage have been duly and properly executed
by
such parties. The Mortgagor is a natural person, at least one Mortgagor
is a
party to the Mortgage Note, and the Mortgage is in an individual
capacity;
14. Excluding
any Mortgage Loan subject to an escrow holdback, the proceeds of the Mortgage
Loan have been fully disbursed to or for the account of the Mortgagor and
there
is no obligation for the Mortgagee to advance additional funds thereunder
and
any and all requirements as to completion of any on-site or off-site improvement
and as to disbursements of any escrow funds therefor have been complied
with.
All costs, fees and expenses incurred in making or closing the Mortgage
Loan and
the recording of the Mortgage have been paid, and the Mortgagor is not
currently
entitled to any refund of any amounts paid or due to the Mortgagee pursuant
to
the Mortgage Note or Mortgage;
15. As
of the
related Closing Date and immediately prior to the sale of the Mortgage
Loan
hereunder, the Company is the sole legal, beneficial and equitable owner
of the
Mortgage Note and the Mortgage and has full right to transfer and sell
the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
lien,
pledge, charge, claim or security interest excepting therefrom warehouse
lending
arrangements security interests which will be released concurrent with
the
closing of the sale to the Purchaser;
16. As
of the
related Closing Date, all parties which have had any interest in the Mortgage
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during
the
period in which they held and disposed of such interest, were) in compliance
with any and all applicable “doing business” and licensing requirements of the
laws of the state wherein the Mortgaged Property is located;
17. The
Mortgage Loan is covered by an ALTA lender’s title insurance policy and, in the
case of an Adjustable Rate Mortgage Loan, with an adjustable rate mortgage
endorsement, such endorsement substantially in the form of ALTA Form 6.0
or 6.1,
issued by a title insurer and qualified to do business in the jurisdiction
where
the Mortgaged Property is located, insuring the Interim Servicer, its successors
and assigns as to the first or second (as indicated on the Mortgage Loan
Schedule) priority lien of the Mortgage in the original principal amount
of the
Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, against
any
loss by reason of the invalidity or unenforceability of the lien resulting
from
the provisions of the Mortgage providing for adjustment in the Mortgage
Interest
Rate and Monthly Payment. Additionally, such lender’s title insurance policy
affirmatively insures ingress and egress to and from the Mortgaged Property,
and
against encroachments by or upon the Mortgaged Property or any interest
therein.
The Originator and its successors and assigns is the sole insured of such
lender’s title insurance policy, and such lender’s title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by this Agreement. Such lender’s title
insurance policy does not require the consent of or notification to the
related
insurer for assignment to the Purchaser.
18. As
of the
related Closing Date, no claims have been made under such lender’s title
insurance policy, and no prior holder of the related Mortgage, including
the
Company, has done, by act or omission, anything which would impair the
coverage
of such lender’s title insurance policy;
19. As
of the
related Closing Date, there is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any
grace
or cure period, would constitute a default, breach, violation or event
of
acceleration; and as of such Closing Date, the Company or the Interim Servicer
has not waived any default, breach, violation or event of acceleration,
except
as otherwise provided in this Agreement. For purposes of the foregoing,
a
delinquent payment of less than thirty (30) days on a Mortgage Loan in
and of
itself does not constitute a default, breach, violation or event of acceleration
with respect to such Mortgage Loan. With respect to each second lien mortgage
loan, as of the origination date of such Mortgage Loan and, to the best
of the
Company’s knowledge, as of the Closing Date (i) the first lien mortgage loan is
in full force and effect, (ii) to the best of Company’s knowledge, there is no
default, breach, violation or event of acceleration existing under such
first
lien mortgage or the related mortgage note, (iii) no event which, with
the
passage of time or with notice and the expiration of any grace or cure
period,
would constitute a default, breach, violation or event of acceleration
thereunder, (iv) either (A) the first lien mortgage contains a provision
which
allows or (B) applicable law requires, the mortgagee under the second lien
Mortgage Loan to receive notice of, and affords such mortgagee an opportunity
to
cure any default by payment in full or otherwise under the first lien mortgage,
(v) the related first lien does not provide for or permit negative amortization
under such first lien Mortgage Loan, and (vi) either no consent for the
Mortgage
Loan is required by the holder of the first lien or such consent has been
obtained and is contained in the Mortgage File.
20. As
of the
related Closing Date, there are no mechanics’ or similar liens or claims which
have been filed for work, labor or material (and no rights are outstanding
that
under law could give rise to such lien) affecting the related Mortgaged
Property
which are or may be liens prior to, or equal or coordinate with, the lien
of the
related Mortgage;
21. All
improvements which were considered in determining the Appraised Value of
the
related Mortgaged Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property, and no improvements on adjoining
properties encroach upon the Mortgaged Property. Each appraisal has been
performed in accordance with the provisions of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989;
22. The
Mortgage Loan was (i) originated by or in conjunction with a mortgagee
approved
by the Secretary of Housing and Urban Development pursuant to Sections
203 and
211 of the National Housing Act, a savings and loan association, a savings
bank,
a commercial bank, mortgage banker, credit union, insurance company or
similar
banking institution which is supervised and examined by a federal or state
authority or (ii) acquired by the Company or its affiliates directly through
loan brokers or correspondents such that (a) the Mortgage Loan was originated
in
conformity with the Underwriting Guidelines and (b) the Company or its
affiliates approved the Mortgage Loan prior to funding;
23. Other
than with respect to interest-only Mortgage Loans, principal payments on
the
Mortgage Loan are scheduled to commence no more than sixty days after the
proceeds of the Mortgage Loan are disbursed. The Mortgage Loan bears interest
at
the Mortgage Interest Rate. The Mortgage Note is payable on the first day
of
each month in Monthly Payments. Interest on the Mortgage Loan is calculated
on
the basis of a 360-day year consisting of twelve 30-day months. The Mortgage
Note does not permit negative amortization. With respect to each Mortgage
Loan
identified on the Mortgage Loan Schedule as an interest-only Mortgage Loan,
the
interest-only period shall not exceed ten (10) years (or such other period
specified on the Mortgage Loan Schedule) and following the expiration of
such
interest-only period, the remaining Monthly Payments shall be sufficient
to
fully amortize the original principal balance over the remaining term of
the
Mortgage Loan and to pay interest at the related Mortgage Interest
Rate;
24. The
origination, servicing and collection practices used with respect to each
Mortgage Note and Mortgage including, without limitation, the establishment,
maintenance and servicing of the Escrow Accounts and Escrow Payments, if
any,
since origination, have been in all respects legal, proper, reasonable
and
customary in the mortgage origination and servicing industry. The Mortgage
Loan
has been serviced by the Interim Servicer and any predecessor servicer
in
accordance with the terms of the Mortgage Note and applicable law. With
respect
to escrow deposits and Escrow Payments, if any, all such payments (so long
as
the Company is acting as Interim Servicer) are in the possession of, or
under
the control with, the Interim Servicer, and there exist no deficiencies
in
connection therewith for which customary arrangements for repayment thereof
have
not been made. No escrow deposits or Escrow Payments or other charges or
payments due the Interim Servicer have been capitalized under any Mortgage
or
the related Mortgage Note;
25. As
of the
related Closing Date, the Mortgaged Property is free of material damage
and
waste and there is no proceeding pending for the total or partial condemnation
thereof;
26. The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (i) in the case of a Mortgage designated as
a deed
of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure. As of
the related Closing Date, since the date of origination of the Mortgage
Loan,
the Mortgaged Property has not been subject to any bankruptcy proceeding
or
foreclosure proceeding and the Mortgagor has not filed for protection under
applicable bankruptcy laws. There is no homestead or other exemption available
to the Mortgagor, which would materially interfere with the right to sell
the
Mortgaged Property at a trustee’s sale or the right to foreclose the Mortgage.
As of the related Closing Date, the Mortgagor has not notified the Interim
Servicer or the Company and the Company or the Interim Servicer has no
knowledge
of any relief requested or allowed to the Mortgagor under the Servicemembers
Civil Relief Act formerly known as the Soldiers and Sailors Civil Relief
Act of
1940;
27. If
a
Mortgage Loan is secured by a long-term residential lease, (1) the lessor
under
the lease holds a fee simple interest in the land; (2) the terms of such
lease
expressly permit the mortgaging of the leasehold estate, the assignment
of the
lease without the lessor’s consent and the acquisition by the holder of the
Mortgage of the rights of the lessee upon foreclosure or assignment in
lieu of
foreclosure or provide the holder of the Mortgage with substantially similar
protections; (3) the terms of such lease do not (a) allow the termination
thereof upon the lessee’s default without the holder of the Mortgage being
entitled to receive written notice of, and opportunity to cure, such default,
(b) allow the termination of the lease in the event of damage or destruction
as
long as the Mortgage is in existence, (c) prohibit the holder of the Mortgage
from being insured (or receiving proceeds of insurance) under the hazard
insurance policy or policies relating to the Mortgaged Property or (d)
permit
any increase in rent other than pre-established increases set forth in
the
lease; (4) the original term of such lease is not less than 15 years; (5)
the
term of such lease does not terminate earlier than five years after the
maturity
date of the Mortgage Note; and (6) the Mortgaged Property is located in
a
jurisdiction in which the use of leasehold estates in transferring ownership
in
residential properties is a widely accepted practice;
28. The
Mortgage Note is not and has not been secured by any collateral except
the lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred
to
above;
29. The
Mortgage File contains an appraisal or insured AVM of the related Mortgaged
Property made prior to the approval of the Mortgage Loan. In the case of
an
appraisal it was made by a staff or third party qualified appraiser who
had no
interest, direct or indirect in the Mortgaged Property or in any loan made
on
the security thereof, whose compensation is not affected by the approval
or
disapproval of the Mortgage Loan, for whom no conflict of interest is present
and who met the minimum qualifications of USPAP;
30. In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified
under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will
become
payable by the Purchaser to the trustee under the deed of trust, except
in
connection with a trustee’s sale after default by the Mortgagor;
31. No
Mortgage Loan contains provisions pursuant to which Monthly Payments are
(i)
paid or partially paid with funds deposited in any separate account established
by the Company, the Mortgagor, or anyone on behalf of the Mortgagor, (ii)
paid
by any source other than the Mortgagor or (iii) contains any other similar
provisions which may constitute a “buydown” provision. The Mortgage Loan is not
a graduated payment mortgage loan and the Mortgage Loan does not have a
shared
appreciation or other contingent interest feature;
32. Mortgagor
has received all disclosure materials required by applicable law with respect
to
the making of a Refinanced Mortgage Loan, and evidence of such receipt
is and
will remain in the Mortgage File;
33. The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to
the
Custodial Agreement, have been delivered to the Custodian all in compliance
with
the specific requirements of the Custodial Agreement;
34. As
of the
related Closing Date, the Mortgaged Property is lawfully occupied under
applicable law and if it is the borrower’s primary residence is not vacant
within ninety (90) days of the related Closing Date (with notice from and
proof
of such vacancy by the Purchaser); all inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of
the
Mortgaged Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy, have been made
or
obtained from the appropriate authorities;
35. The
Assignment of Mortgage, is in recordable form and (other than with respect
to
the blank assignee and the lack of mortgage recordation information) is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located. When endorsed as provided for in this Agreement,
the Mortgage Notes will be duly endorsed under applicable law;
36. Any
principal advances made to the Mortgagor prior to the related Cut-off Date
have
been consolidated with the outstanding principal amount secured by the
Mortgage,
and the secured principal amount, as consolidated, bears a single interest
rate
and single repayment term. So long as the Company is acting as Interim
Servicer,
the lien of the Mortgage securing the consolidated principal amount is
expressly
insured as having first or second (as indicated on the Mortgage Loan Schedule)
lien priority by a title insurance policy, an endorsement to the policy
insuring
the mortgagee’s consolidated interest or by other title evidence acceptable to
Xxxxxx Xxx and Xxxxxxx Mac. So long as the Company is acting as Interim
Servicer, the consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
37. No
Mortgage Loan has a balloon payment feature;
38. If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or
a unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project is not ineligible
under
Xxxxxx Mae’s eligibility requirements;
39. No
statement, report or other document constituting a part of the Mortgage
Loan
Schedule contains any material untrue statement of fact or omits to state
a fact
necessary to make the statements contained therein not misleading which
would,
either individually or in the aggregate, have a material adverse effect
on the
value of the Mortgage Loans;
40. Each
Mortgage Loan constitutes a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code;
41. As
of the
related Closing Date, no Mortgage Loan has an LTV or a CLTV of more than
100%.
42. No
Mortgage Loan is a “high cost” mortgage loan, as defined under any applicable
state, local or federal predatory and abusive lending laws, including,
but not
limited to, the Georgia Fair Lending Act and Section 6 L of the New York
State
Banking Law;
43. With
respect to any Mortgage Loan which is a Texas Home Equity Loan, any and
all
requirements of Section 50, Article XVI of the Texas Constitution applicable
to
Texas Home Equity Loans which were in effect at the time of the origination
of
the Mortgage Loan have been complied with. Specifically, without limiting
the
generality of the foregoing: (i) all fees paid by the owner of the Mortgaged
Property or such owner’s spouse, to any person, that were necessary to
originate, evaluate, maintain, record, insure or service the Mortgage Loan
are
reflected in the closing statement for such Mortgage Loan; (ii) the Mortgage
Loan was closed only at the office of the mortgage lender, an attorney
at law,
or a title company; (iii) the mortgagee has not been found by a federal
regulatory agency to have engaged in the practice of refusing to make loans
because the applicants for the loans reside or the property proposed to
secure
the loans is located in a certain area; (iv) the owner of the Mortgaged
Property
was not required to apply the proceeds of the Mortgage Loan to repay another
debt except debt secured by the Mortgaged Property or debt to a lender
other
than the mortgagee; (v) the owner of the Mortgaged Property did not sign
any
documents or instruments relating to the Loan in which blanks were left
to be
filled in; and (vii) if discussions between the mortgagee and the Mortgagor
were
conducted primarily in a language other than English, the mortgagee provided
to
the owner of the Mortgaged Property, prior to closing, a copy of the notice
required by Section 50(g), Article XVI of the Texas Constitution translated
into
the written language in which the discussions were conducted;
44. All
notices, acknowledgments and disclosure statements required by Section
50,
Article XVI of the Texas Constitution applicable to Texas Home Equity Loans
are
contained in the Mortgage File for each such Mortgage Loan;
45. All
cash-out Mortgage Loans secured by real property in the state of Texas
shall be
made in accordance with Texas law;
46. The
Mortgage Loans are not subject to the requirement of the Home Ownership
and
Equity Protection Act of 1994 (“HOEPA”) and no Mortgage Loan is subject to, or
in violation of, any applicable state or local law, ordinance or regulation
similar to HOEPA and (2) (i) no Mortgage Loan is a “high cost” loan as defined
by HOEPA or any other applicable predatory or abusive lending laws and
(ii) no
Mortgage Loan is a “high cost home”, “covered” (excluding home loans defined as
“covered home loans” pursuant to clause (1) of the definition of that term in
the New Jersey Home Ownership Security Act of 2002), “high risk home” or
“predatory” loan under any other applicable state, federal or local law (or
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for resident
mortgage loans having high interest rates, points and/or fees);
47. No
Mortgage Loan is a “covered home loan” pursuant to the New Jersey Home Ownership
Security Act of 2002;
48. With
respect to each Mortgage Loan subject to a Prepayment Charge, such Prepayment
Charge, at the time of the origination of the related Mortgage Loan, is
enforceable and in compliance with all applicable local, state and federal
law;
49. [Reserved];
50. As
of the
related Closing Date, the Mortgaged Property is being primarily used as
a
Residential Dwelling for residential purposes;
51. The
Company has obtained a life of loan, transferable real estate tax service
contract on each Mortgage Loan and such contract is assignable without
penalty,
premium or cost to the Purchaser;
52. The
Company has obtained a life of loan, transferable flood certification contract
for each Mortgage Loan and such contract is assignable without penalty,
premium
or cost to the Purchaser;
53. The
Mortgage Loans conform in all material respects to the Underwriting
Guidelines;
54. No
Mortgage Loan originated on or after October 1, 2002 and before March 7,
2003 is
secured by a Mortgaged Property located in the State of Georgia; No Mortgage
Loan that was originated on or after March 7, 2003, is a “high-cost home loan”
as defined under the Georgia Fair Lending Act;
55. No
Mortgagor was required to purchase any credit insurance product (e.g.,
life,
mortgage, disability, accident, unemployment or health insurance product)
or
debt cancellation agreement as a condition of obtaining the extension of
credit.
No Mortgagor obtained a prepaid single premium credit insurance policy
(e.g.,
life, mortgage, disability, accident, unemployment or health insurance
product)
or debt cancellation agreement in connection with the origination of the
Mortgage Loan. No proceeds from any Mortgage Loan were used to purchase
single
premium credit insurance policies or debt cancellation agreements as part
of the
origination of, or as a condition to closing, such Mortgage Loan;
56. [Reserved.]
57. In
connection with any Mortgage Loan, the Interim Servicer has fully furnished,
and
will fully furnish in accordance with the Fair Credit Reporting Act and
its
implementing regulations, accurate and complete information (i.e., favorable
and
unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union
Credit Information Company, on a monthly basis;
58. With
respect to each Mortgage Loan that contains a provision permitting imposition
of
a premium upon a prepayment prior to maturity: (a) the Mortgage Loan provides
some benefits to the Mortgagor (e.g., such as rate or fee reduction) in
exchange
for accepting such prepayment premium; (b) the Mortgage Loan’s originator had a
written policy of offering the Mortgagor, or requiring any third-party
brokers
to offer the Mortgagor, the option of obtaining a mortgage loan that did
not
require payment of such a premium, unless the Mortgage Loan that did not
require
payment of such a premium would be a HOEPA loan or a high-cost home loan
under
any applicable state or local law prohibited by the originator's underwriting
guidelines; (c) the prepayment premium was adequately disclosed to the
Mortgagor
pursuant to applicable state and federal law; (d) no subprime Mortgage
Loan
originated on or after October 1, 2002 will impose a prepayment premium
for a
term in excess of three years and any Mortgage Loans originated prior to
such
date, and any non-subprime Mortgage Loans, will not impose prepayment penalties
in excess of five years; in each case unless the Mortgage Loan was modified
to
reduce the prepayment period to no more than three years from the date
of the
note and the Mortgagor was notified in writing of such reduction in prepayment
period; and (e) the Company shall not impose such prepayment premium in
any
instance when the Mortgage Loan is accelerated or paid off in connection
with
the workout of a delinquent Mortgage or due to the Mortgagor’s default,
notwithstanding that the terms of the Mortgage Loan or state or federal
law
might permit the Company to impose such premium;
59. No
Mortgage Loan is a “high cost”, “covered” or similarly classified loans as
defined by the applicable federal, state or local predatory and abusive
lending
laws nor is any loan a High Cost Loan or Covered Loan, as applicable (as
such
terms are defined in the then current Standard & Poor’s LEVELS Glossary
Revised, Appendix E);
60. No
fraud
was committed in connection with the origination of any Mortgage Loan;
provided,
however, the Company does not represent or warrant the accuracy of the
qualifying income stated by the related Mortgagor(s) in connection with
a
Mortgage Loan that does not require income verification as defined in the
Underwriting Guidelines;
61. The
Mortgaged Property is free from any and all toxic or hazardous substances,
other
than those commonly used for homeowner repair and maintenance and/or household
purposes, and there exists no pending action or proceeding directly involving
the Mortgaged Property in which compliance with any environmental law,
rule or
regulation is an issue;
62. The
Mortgage Loan was not prepaid in full prior to the related Closing
Date;
63. The
Company has materially complied with all applicable anti-money laundering
laws
and regulations, including without limitation the USA Patriot Act of
2001;
64. No
Mortgage Loan mortgagor was encouraged or required to select a mortgage
loan
product offered by the originator which is a higher cost product designed
for a
less creditworthy mortgagor, unless at the time of the Mortgage Loan’s
origination, such mortgagor did not qualify taking into account credit
history
and debt-to-income ratios for a lower cost credit product then offered
by the
originator. A borrower who is able to qualify for one of the originator’s
standard products should be directed towards or offered the originator’s
standard mortgage line;
65. With
respect to any Mortgage Loan, the methodology used in underwriting the
extension
of credit for each Mortgage Loan did not rely on the extent of the borrower’s
equity in the collateral as the principal determining factor in approving
such
extension of credit. The methodology employed objective criteria that related
such facts as, without limitation, the borrower’s credit history, income, assets
or liabilities, to the proposed mortgage payment and, based on such methodology,
the originator made a reasonable determination that at the time of origination
the borrower had the ability to make timely payments on the Mortgage
Loan;
66. With
respect to each Mortgage Loan, the Company or one of its affiliates as
servicer
for each Mortgage Loan, has fully furnished and will fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on
its
borrower credit files to Equifax, Experian and Trans Union Credit Information
Company or their successors (the “Credit Repositories”) on a monthly
basis;
67. With
respect to any Mortgage Loan, no borrower was charged “points and fees” in an
amount greater than (a) $1,000 or (b) 5% of the principal amount of such
mortgage loan, whichever is greater. For purposes of this representation,
“points and fees” (a) include origination, underwriting, broker and finder’s
fees and charges that the lender imposed as a condition of making the mortgage
loan, whether they are paid to the lender or a third party, and (b) exclude
bona
fide discount points, fees paid for actual services rendered in connection
with
the origination of the mortgage (such as attorneys’ fees, notaries fees and fees
paid for property appraisals, credit reports, surveys, title examinations
and
extracts, flood and tax certifications, and home inspections); the cost
of
mortgage insurance or credit-risk price adjustments; the costs of title,
hazard,
and flood insurance policies; state and local transfer taxes or fees; escrow
deposits for the future payment of taxes and insurance premiums; and other
miscellaneous fees and charges that, in total, do not exceed 0.25 percent
of the
loan amount.
68. With
respect to any Mortgage Loan which is secured by manufactured housing,
if such
Mortgage Loans are permitted hereunder, such Mortgage Loan satisfies the
requirements for inclusion in residential mortgage backed securities
transactions rated by Standard & Poor's Ratings Services and such
manufactured housing will be the principal residence of the Mortgagor upon
the
origination of the Mortgage Loan. With respect to any second lien Mortgage
Loan,
such lien is on a one- to four-family residence that is (or will be) the
principal residence of the Mortgagor upon the origination of the second
lien
Mortgage Loan;
69. With
respect to any Mortgage Loan or the underlying security related thereto,
neither
the related Mortgage nor the related Mortgage Note requires the Mortgagor
to
submit to arbitration to resolve any dispute arising out of or relating
in any
way thereto; and
70. With
respect to each second lien Mortgage Loan, such Mortgage Loan was originated
in
connection with the origination of a first lien Mortgage Loan on the related
Mortgaged Property.
EXHIBIT
C-3
FORM
OF
OMNIBUS ASSIGNMENT AGREEMENT
OMNIBUS
ASSIGNMENT AGREEMENT
THIS
OMNIBUS ASSIGNMENT AGREEMENT, dated February 1, 2007, (“Agreement”)
between Greenwich Capital Financial Products, Inc. (“Assignor”),
Financial Asset Securities Corp. (“Assignee”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and a certain percentage
of
the Class C Certificates, the Class P Certificates and the Class FL Certificates
which shall be registered in the name of Greenwich Capital Financial
Products,
Inc. or its designee, and of the mutual covenants herein contained, the
parties
hereto hereby agree as follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
all of the right, title and interest of the Assignor, as purchaser, in,
to and
under (a) those certain Mortgage Loans listed as being originated by the
related
originator on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) the master mortgage loan purchase and interim servicing agreement as
set
forth on Schedule I, as amended (the “Purchase
Agreements”),
solely insofar as the Purchase Agreement relates to the Mortgage
Loans.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the Mortgage Loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
2. The
Assignor hereby makes the following representations, warranties and covenants
as
of the date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive and/or usury lending laws;
(c) None
of
the mortgage loans are High Cost as defined by any applicable predatory
and
abusive lending laws;
(e) No
Mortgage Loan is a High Cost Loan or a Covered Loan, as applicable (as
such
terms are defined in the then current Standard & Poor’s LEVELS Glossary,
Appendix E); and
(d)
No
mortgage loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act.
Miscellaneous
3. This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
4. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of
the
Trustee.
5. This
Agreement shall inure to the benefit of (i) the successors and assigns
of the
parties hereto and (ii) the Trust (including the Trustee and the Servicer
acting
on the Trust’s behalf). Any entity into which Assignor, Assignee may be merged
or consolidated shall, without the requirement for any further writing, be
deemed Assignor, Assignee, respectively, hereunder.
6. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
7. This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
8. In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
9. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
|
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
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|||||||||||||
|
By:
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|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
|
FINANCIAL
ASSET SECURITIES CORP.
|
|||||||||||||
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By:
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|||||||||||||
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Name:
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|||||||||||||
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Title:
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|||||||||||||
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
SCHEDULE
I
Schedule
of Master Mortgage Loan Purchase and Interim Servicing Agreements
1. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated March 1,
2006,
between Novastar Certificates Financing Corporation and Greenwich Capital
Financial Products, Inc.
2. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated May 1, 2006,
between New Century Mortgage Corporation, as Seller and Interim Servicer,
and
Greenwich Capital Financial Products, Inc., as Initial Purchaser.
3. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated March 1,
2006,
among Xxxxxxx Street Funding II, LLC, as Seller, Centex Home Equity Company,
LLC, as Interim Servicer, and Greenwich Capital Financial Products, Inc.,
as
Initial Purchaser.
4. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated June 1, 2006,
between First NLC Financial Services, LLC, as Seller and Interim Servicer,
and
Greenwich Capital Financial Products, Inc., as Initial Purchaser.
5. Master
Mortgage Loan Purchase and Servicing Agreement, dated April 1, 2003, between
Greenwich Capital
Financial
Products, Inc., as Purchaser, and Countrywide Home Loans, Inc. as Seller
and
Servicer.
6. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated December
1, 2005,
between Aames Capital Corporation, as Seller and Interim Servicer, and
Greenwich
Capital Financial Products, Inc., as Initial Purchaser.
7. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated November
1, 2005,
between Meritage Mortgage Corporation, as Seller and Interim Servicer,
and
Greenwich Capital Financial Products, Inc., as Initial Purchaser.
8. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated April 1,
2005,
between Long Beach Mortgage Company, as Seller and Interim Servicer, and
Greenwich Capital Financial Products, Inc., as Purchaser.
9. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated December
1, 2005,
between Fremont Investment and Loan, as Seller and Interim Servicer, and
Greenwich Capital Financial Products, Inc., as Initial Purchaser.
EXHIBIT
D
MORTGAGE
LOAN SCHEDULE
AS
FILED
ON FEBRUARY 27, 2007
EXHIBIT
E
REQUEST
FOR RELEASE
|
To:
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
|
|
Re:
|
Pooling
and Servicing Agreement dated as of February 1, 2007, among Financial
Asset Securities Corp. as Depositor, Ocwen Loan Servicing, LLC
as
Servicer, Xxxxx Fargo Bank, N.A. as Master Servicer and Trust
Administrator and Deutsche Bank National Trust Company, a national
banking
association, as Trustee
|
In
connection with the administration of the Mortgage Loans held by you as Trustee
pursuant to the above-captioned Pooling and Servicing Agreement, we request
the
release, and hereby acknowledge receipt of the Trustee’s Mortgage File Or the
Mortgage Loan described below, for the reason indicated. Any payments received
in connection with this Request for Release of documents have been or will
be
deposited into the Collection Account for the benefit of the Trust.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
|
_________1.
|
Mortgage
Paid in Full
|
|
|
_________2.
|
Foreclosure
|
|
|
_________3.
|
Substitution
|
|
|
_________4.
|
Other
Liquidation (Repurchases, etc.)
|
|
|
_________5.
|
Nonliquidation
|
Reason:_____________________
|
Address
to which Trustee should deliver
the
Trustee’s Mortgage File:
|
By:
|
|
|
(authorized
signer)
|
|
|
Issuer:
|
|
|
Address:
|
|
|
Date:
|
|
Trustee
Deutsche
Bank National Trust Company
Please
acknowledge the execution of the above request by your signature and date
below:
|
Signature
|
Date
|
|
|
Documents
returned to Trustee:
|
||
|
Trustee
|
Date
|
EXHIBIT
F-1
FORM
OF
TRUSTEE’S INITIAL CERTIFICATION
February
__, 2007
|
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Ocwen
Loan Servicing, LLC
0000
Xxxx Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 00X
Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
|
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Soundview 2007-1
|
|
Countrywide
Home Loans Servicing LP
000
Xxxxxxxxxxx Xxx
Xxxx
Xxxxxx, Xxxxxxxxxx 00000
|
Central
Mortgage Company
000
Xxxx Xxxxxx Xxxx Xxxxx 0
Xxxxxx
Xxxx, Xxxxxxxx 00000
|
|
GMAC
Mortgage LLC
0000
Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxx 00000
|
|
Re:
|
Pooling
and Servicing Agreement dated as of February 1, 2007, among Financial
Asset Securities Corp. as Depositor, Ocwen Loan Servicing, LLC
as
Servicer, Xxxxx Fargo Bank, N.A. as Master Servicer and Trust
Administrator and Deutsche Bank National Trust Company, a national
banking
association, as Trustee
|
Ladies
and Gentlemen:
Attached
is the Trustee’s preliminary exception report delivered in accordance with
Section 2.02 of the referenced Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”). Capitalized terms used but not otherwise defined herein
shall have the meanings set forth in the Pooling and Servicing
Agreement.
The
Trustee has made no independent examination of any documents contained in
each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to (i) the
validity, legality, sufficiency, enforceability or genuineness of any of
the
documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any
Mortgage File includes any of the documents specified in clause (vi) of Section
2.01 of the Pooling and Servicing Agreement.
|
[DEUTSCHE
BANK NATIONAL TRUST COMPANY]
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
EXHIBIT
F-2
FORM
OF
TRUSTEE’S FINAL CERTIFICATION
________________
[Date]
|
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Ocwen
Loan Servicing, LLC
0000
Xxxx Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 00X
Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
|
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Soundview 2007-1
|
|
Countrywide
Home Loans Servicing LP
000
Xxxxxxxxxxx Xxx
Xxxx
Xxxxxx, Xxxxxxxxxx 00000
|
Central
Mortgage Company
000
Xxxx Xxxxxx Xxxx Xxxxx 0
Xxxxxx
Xxxx, Xxxxxxxx 00000
|
|
GMAC
Mortgage LLC
0000
Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxx 00000
|
|
Re:
|
Pooling
and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as
of February 1, 2007 among Financial Asset Securities Corp., as
Depositor,
Ocwen Loan Servicing, LLC as Servicer, Xxxxx Fargo Bank, N.A. as
Master
Servicer and Trust Administrator and Deutsche Bank National Trust
Company,
as Trustee with respect to Soundview Home Loan Trust 2007-1, Asset-Backed
Certificates, Series 2007-1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement, the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage loan paid in full
or
listed on Schedule I hereto) it (or its custodian) has received the applicable
documents listed in Section 2.01 of the Pooling and Servicing
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 above 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 1, 3, 10, 11 and 15 of the
definition of Mortgage Loan Schedule in the Pooling and Servicing Agreement
accurately reflects information in the Mortgage File.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement. This Certificate is qualified
in
all respects by the terms of said Pooling and Servicing Agreement.
|
[DEUTSCHE
BANK NATIONAL TRUST COMPANY]
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
EXHIBIT
F-3
FORM
OF
RECEIPT OF MORTGAGE NOTE
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Soundivew
Home Loan Trust 2007-1,
Asset-Backed
Certificates Series 2007-1
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”), dated as of February 1, 2007 among Financial Asset
Securities Corp., as Depositor, Ocwen Loan Servicing, LLC as Servicer, Xxxxx
Fargo Bank, N.A. as Master Servicer and Trust Administrator and Deutsche
Bank
National Trust Company, as Trustee, we hereby acknowledge the receipt of
the
original Mortgage Notes (a copy of which is attached hereto as Exhibit 1)
with
any exceptions thereto listed on Exhibit 2.
|
[DEUTSCHE
BANK NATIONAL TRUST COMPANY]
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
EXHIBIT
G
FORM
OF
CAP ALLOCATION AGREEMENT
This
Cap
Allocation Agreement, dated as of February 28, 2007 (this “Agreement”), between
Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”), as cap trustee for the cap trust (in
such capacity, the “Cap Trustee”) and Greenwich
Capital Financial Products, Inc. (“GCFP”), or its designee.
WHEREAS,
Xxxxx Fargo, on behalf of a separate trust established hereunder which
holds an
Interest Rate Cap Agreement (the “Cap Agreement”), a copy of which is attached
hereto as Exhibit A, between the Cap Trustee,
on
behalf of the Cap Trust
and Bear
Xxxxxxx Financial Products Inc. (the “Cap Provider”) is a counterparty to the
Cap Agreement;
and
WHEREAS,
it is desirable to irrevocably appoint the Cap Trustee, and the Cap Trustee
desires to accept such appointment, to receive and distribute funds payable
by
the Cap Provider to the Cap Trustee, on behalf of the Cap Trust under the
Cap
Agreement as provided herein;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and
for
other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the parties agree as follows:
1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned thereto in the Pooling and Servicing Agreement,
dated as of February 1, 2007 (the “Pooling and Servicing Agreement”), among
Financial Asset Securities Corp., as Depositor, Ocwen Loan Servicing, LLC,
as
servicer, Xxxxx Fargo Bank, N.A., as master servicer and trust administrator
(the “Master Servicer”) and Deutsche Bank National Trust Company, as trustee
(the “Trustee”), relating to the Soundview Home Loan Trust 2007-1 (the “Trust”),
Asset-Backed Certificates, Series 2007-1 (the “Certificates”), or in the related
Indenture as the case may be, as in effect on the date hereof.
2. Cap
Trust.
There
is hereby established a separate trust (the “Cap Trust”), into which the Cap
Trustee shall deposit the Cap Agreement. The Cap Trust shall be maintained
by
the Cap Trustee. The sole assets of the Cap Trust shall be the Cap Agreement
and
the Cap Trust Account.
3. Cap
Trustee.
(a) The
Cap
Trustee, on behalf of the Cap Trust, is hereby irrevocably appointed to
receive
all funds paid to the Cap Trustee by the Cap Provider, or its successors
in
interest under the Cap Agreement (including any Cap Termination Payment)
and the
Cap Trustee accepts such appointment and hereby agrees to receive such
amounts,
deposit such amounts into the Cap Trust Account and to distribute on each
Distribution Date such amounts in the following order of priority:
(i) first,
for deposit into the Cap Account (established under the Pooling and Servicing
Agreement), an amount equal to the sum of the following amounts remaining
outstanding after distribution of the Net Monthly Excess Cashflow and any
Net
Swap Payments received under the Interest Rate Swap Agreement with the
Trust:
(A) Unpaid Interest Shortfall Amounts, (B) Net WAC Rate Carryover Amounts;
(C)
an
amount
necessary to maintain or restore the Overcollateralization Target Amount;
and
(D) any
Allocated Realized Loss Amounts;
(ii) second,
to GCFP, or its designee, any amounts remaining after payment of (i) above,
provided,
however,
upon the
issuance of notes by an issuer (the “NIM Trust”), secured by all or a portion of
the Class C Certificates and the Class P Certificates (the “NIM Notes”), GCFP,
or its designee, hereby instructs the Cap Trustee to make any payments
under
this clause 3(a)(ii):
(A) to
the
Indenture Trustee for the NIM Trust, for deposit into the Note Account
(each as
defined in the related Indenture), for distribution in accordance with
the terms
of the Indenture until satisfaction and discharge of the Indenture;
and
(B) after
satisfaction and discharge of the Indenture, to the Holders of the Class
C
Certificates, pro
rata
based on
the outstanding Notional Amount of each such Certificate.
(b) The
Cap
Trustee agrees to hold any amounts received from the Cap Provider in trust
upon
the terms and conditions and for the exclusive use and benefit of the Trustee
and the Indenture Trustee, as applicable (in turn for the benefit of the
Certificateholders, the Noteholders, GCFP and the NIMS Insurer, if any)
as set
forth herein. The rights, duties and liabilities of the Cap Trustee in
respect
of this Agreement shall be as follows:
(i) The
Cap
Trustee shall have the full power and authority to do all things not
inconsistent with the provisions of this Agreement that may be deemed advisable
in order to enforce the provisions hereof. The Cap Trustee shall not be
answerable or accountable except for its own bad faith, willful misconduct
or
negligence. The Cap Trustee shall not be required to take any action to
exercise
or enforce any of its rights or powers hereunder which, in the opinion
of the
Cap Trustee, shall be likely to involve expense or liability to the Cap
Trustee,
unless the Cap Trustee shall have received an agreement satisfactory to
it in
its sole discretion to indemnify it against such liability and
expense.
(ii) The
Cap
Trustee shall not be liable with respect to any action taken or omitted
to be
taken by it in good faith in accordance with the direction of any party
hereto
or the NIMS Insurer, if any, or otherwise as provided herein, relating
to the
time, method and place of conducting any proceeding for any remedy available
to
the Cap Trustee or exercising any right or power conferred upon the Cap
Trustee
under this Agreement.
(iii) The
Cap
Trustee may perform any duties hereunder either directly or by or through
agents
or attorneys of the Cap Trustee. The Cap Trustee shall not be liable for
the
acts or omissions of its agents or attorneys so long as the Cap Trustee
chose
such Persons with due care.
4. Cap
Trust Account.
The Cap
Trustee shall segregate and hold all funds received from the Cap Provider
(including any Cap Termination Payment) separate and apart from any of
its own
funds and general assets and shall establish and maintain in the name of
the Cap
Trustee one or more segregated accounts (the “Cap Trust Account”).
5. [RESERVED].
6. Representations
and Warranties of Xxxxx Fargo.
Xxxxx
Fargo represents and warrants as follows:
(a) Xxxxx
Fargo is duly organized and validly existing as a national banking association
under the laws of the United States and has all requisite power and authority
to
execute and deliver this Agreement, to perform its obligations as Cap Trustee
hereunder.
(b) The
execution, delivery and performance of this Agreement by Xxxxx Fargo as
Trustee
have been duly authorized in the Pooling and Servicing Agreement.
(c) This
Agreement has been duly executed and delivered by Xxxxx Fargo as Cap Trustee
and
the Trustee and is enforceable against Xxxxx Fargo in such capacities in
accordance with its terms, except as enforceability may be affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and
other similar laws relating to or affecting creditors’ rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law).
7. Replacement
of Cap Trustee.
Any
corporation, bank, trust company or association into which the Cap Trustee
may
be merged or converted or with which it may be consolidated, or any corporation,
bank, trust company or association resulting from any merger, conversion
or
consolidation to which the Cap Trustee shall be a party, or any corporation,
bank, trust company or association succeeding to all or substantially all
the
corporate trust business of the Cap Trustee, shall be the successor of
the Cap
Trustee hereunder, without the execution or filing of any paper or any
further
act on the part of any of the parties hereto, except to the extent that
assumption of its duties and obligations, as such, is not effected by operation
of law.
No
resignation or removal of the Cap Trustee and no appointment of a successor
Cap
Trustee shall become effective until the appointment by GCFP, or its designee,
of a successor Cap Trustee acceptable to the NIMS Insurer, if any. Any
successor
Cap Trustee shall execute such documents or instruments necessary or appropriate
to vest in and confirm to such successor Cap Trustee all such rights and
powers
conferred by this Agreement.
The
Cap
Trustee may resign at any time by giving written notice thereof to the
other
parties hereto with a copy to the NIMS Insurer, if any. If a successor
cap
trustee shall not have accepted the appointment hereunder within 30 days
after
the giving by the resigning Cap Trustee of such notice of resignation,
the
resigning Cap Trustee may petition any court of competent jurisdiction
for the
appointment of a successor Cap Trustee acceptable to the NIMS Insurer,
if
any.
In
the
event of a resignation or removal of the Cap Trustee, GCFP, or its designee,
shall promptly appoint a successor Cap Trustee acceptable to the NIMS Insurer,
if any. If no such appointment has been made within 10 days of the resignation
or removal, the NIMS Insurer, if any, may appoint a successor Cap
Trustee.
8. Cap
Trustee Obligations.
Whenever
the Cap Trustee, on behalf of the Cap Trust, as a party to the Cap Agreement,
has the option or is requested in such capacity, whether such request is
by the
Cap Provider, to take any action or to give any consent, approval or waiver
that
it is on behalf of the Cap Trust entitled to take or give in such capacity,
including, without limitation, in connection with an amendment of such
agreement
or the occurrence of a default or termination event thereunder, the Cap
Trustee
shall promptly notify the parties hereto and the NIMS Insurer, if any,
of such
request in such detail as is available to it and, shall, on behalf of the
parties hereto and the NIMS Insurer, if any, take such action in connection
with
the exercise and/or enforcement of any rights and/or remedies available
to it in
such capacity with respect to such request as GCFP, or its designee, or
the NIMS
Insurer, if any, shall direct in writing; provided that if no such direction
is
received prior to the date that is established for taking such action or
giving
such consent, approval or waiver (notice of which date shall be given by
the Cap
Trustee to the parties hereto and the NIMS Insurer, if any), the Cap Trustee
may
abstain from taking such action or giving such consent, approval or
waiver.
The
Cap
Trustee shall forward to the parties hereto and the NIMS Insurer, if any,
on the
Distribution Date following its receipt thereof copies of any and all notices,
statements, reports and/or other material communications and information
(collectively, the “Cap Reports”) that it receives in connection with the Cap
Agreement or from the counterparty thereto.
9. Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York.
(b) Any
action or proceeding against any of the parties hereto relating in any
way to
this Agreement may be brought and enforced in the courts of the State of
New
York sitting in the borough of Manhattan or of the United States District
Court
for the Southern District of New York and the Cap Trustee irrevocably submits
to
the jurisdiction of each such court in respect of any such action or proceeding.
The Cap Trustee waives, to the fullest extent permitted by law, any right
to
remove any such action or proceeding by reason of improper venue or inconvenient
forum.
(c) This
Agreement may be amended, supplemented or modified in writing by the parties
hereto, but only with the consent of GCFP and the NIMS Insurer, if
any.
(d) This
Agreement may not be assigned or transferred without the prior written
consent
of GCFP and the NIMS Insurer, if any; provided, however, the parties hereto
acknowledge and agree to the assignment of the rights of GCFP, or its designee,
pursuant to the Sale Agreement, the Trust Agreement and the
Indenture.
(e) This
Agreement may be executed by one or more of the parties to this Agreement
on any
number of separate counterparts (including by facsimile transmission),
and all
such counterparts taken together shall be deemed to constitute one and
the same
instrument.
(f) Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
(g) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or omission
on the
part of any party hereto shall constitute a waiver of any such representation
or
warranty.
(h) The
article and section headings herein are for convenience of reference only,
and
shall not limit or otherwise affect the meaning hereof.
(i) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or omission
on the
part of any party hereto shall constitute a waiver of any such representation
or
warranty.
10. Third-Party
Beneficiary. Each
of
the Trustee, GCFP or its designee and the Indenture Trustee, if any,
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 the provisions
of this
Agreement. If any default occurs on the part of the Cap Provider under
the Cap
Agreement in the making of a payment due under the Cap Agreement or in
any other
obligation of the Cap Provider under the Cap Agreement, the Cap Trustee
may and,
upon the request of the Trustee, GCFP or its designee or the Indenture
Trustee,
shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
11. Cap
Trustee and Trustee Rights.
The Cap
Trustee shall be entitled to the same rights, protections and indemnities
afforded to the Trustee under the Pooling and Servicing Agreement, and
the
Indenture Trustee under the Indenture, in each case as if specifically
set forth
herein with respect to the Cap Trustee.
The
Trustee shall be entitled to the same rights, protections and indemnities
afforded to the Trustee under the Pooling and Servicing Agreement as if
specifically set forth herein with respect to the Cap Trustee.
12. Limited
Recourse.
It is
expressly understood and agreed by the parties hereto that this Agreement
is
executed and delivered by the Trustee, not in its individual capacity but
solely
as Trustee under the Pooling and Servicing Agreement. Notwithstanding any
other
provisions of this Agreement, the obligations of the Trustee under this
Agreement are non-recourse to the Trustee, its assets and its property,
and
shall be payable solely from the assets of the Trust Fund, and following
realization of such assets, any claims of any party hereto shall be extinguished
and shall not thereafter be reinstated. No recourse shall be had against
any
principal, director, officer, employee, beneficiary, shareholder, partner,
member, Trustee, agent or affiliate of the Trustee or any person owning,
directly or indirectly, any legal or beneficial interest in the Trustee,
or any
successors or assigns of any of the foregoing (the “Exculpated Parties”) for the
payment of any amount payable under this Agreement. The parties hereto
shall not
enforce the liability and obligations of the Trustee to perform and observe
the
obligations contained in this Agreement by any action or proceeding wherein
a
money judgment establishing any personal liability shall be sought against
the
Trustee, subject to the following sentence, or the Exculpated Parties.
The
agreements in this paragraph shall survive termination of this Agreement
and the
performance of all obligations hereunder.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
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XXXXX
FARGO BANK, N.A.
not
in its individual capacity but solely as Cap Trustee under this
Agreement
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By:
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Name:
Title:
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GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
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By:
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Name:
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Title:
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EXHIBIT
A
INTEREST
RATE CAP AGREEMENT
EXHIBIT
H
FORM
OF
LOST NOTE AFFIDAVIT
Personally
appeared before me the undersigned authority to administer oaths,
__________________ who first being duly sworn deposes and says: Deponent
is
__________________________ of ____________________________, successor by
merger
to _________________________ (“Seller”) and who has personal knowledge of the
facts set out in this affidavit.
On
_________________________________, _________________________________ did
execute
and deliver a promissory note in the principal amount of
$____________________.
That
said
note has been misplaced or lost through causes unknown and is presently lost
and
unavailable after diligent search has been made. Seller’s records show that an
amount of principal and interest on said note is still presently outstanding,
due, and unpaid, and Seller is still owner and holder in due course of said
lost
note.
Seller
executes this Affidavit for the purpose of inducing Deutsche Bank National
Trust
Company, as trustee on behalf of Soundview Home Loan Trust 2007-1, Asset-Backed
Certificates Series 2007-1, to accept the transfer of the above described
loan
from Seller.
Seller
agrees to indemnify Deutsche Bank National Trust Company and Financial Asset
Securities Corp. harmless for any losses incurred by such parties resulting
from
the above described promissory note has been lost or misplaced.
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By:
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STATE
OF
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)
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) SS:
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COUNTY
OF
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)
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On
this
______ day of ______________, 20_, before me, a Notary Public, in and for
said
County and State, appeared , who acknowledged the extension of the foregoing
and
who, having been duly sworn, states that any representations therein contained
are true.
Witness
my hand and Notarial Seal this _________ day of 20__.
My
commission expires __________________________.
EXHIBIT
I
FORM
OF
LIMITED POWER OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that [NAME OF MORTGAGEE, ASSIGNEE OR LAST ENDORSEE,
AS
APPLICABLE], [a ___________________ corporation][a national banking
organization], having its principal place of business at
__________________________, (the “Undersigned”), pursuant to that Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) among Financial
Asset Securities Corp. (the “Owner”), Deutsche Bank National Trust Company,
Ocwen Loan Servicing, LLC (“Ocwen”) and Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”),
hereby constitutes and appoints Ocwen, by and through Ocwen’s officers, the
Undersigned's true and lawful Attorney-in-Fact, in the Undersigned's name,
place
and stead, as their interests may appear, and for the Undersigned's respective
benefit, in connection with all Mortgage Loans serviced by Ocwen pursuant
to the
Pooling and Servicing Agreement, for the purpose of performing all acts and
executing all documents in the name of the Undersigned as may be customarily
and
reasonably necessary and appropriate to effectuate the following enumerated
transactions in respect of any of the mortgages, deeds of trust or security
instrument (each a “Mortgage” or a “Deed of Trust” respectively) and promissory
notes secured thereby (each a “Mortgage Note”) for which the Undersigned is
acting as Servicer pursuant to the Pooling and Servicing Agreement (whether
the
Undersigned is named therein as mortgagee or beneficiary or has become mortgagee
by virtue of endorsement of the Mortgage Note secured by any such Mortgage
or
Deed of Trust) all subject to the terms of the related Pooling and Servicing
Agreement.
This
appointment shall apply to the following enumerated transactions
only:
1. The
modification or re-recording of a Mortgage or Deed of Trust, where said
modification or re-recording is for the purpose of correcting the Mortgage
or
Deed of Trust to conform same to the original intent of the parties thereto
or
to correct title errors discovered after such title insurance was issued
and
said modification or re-recording, in either instance, does not adversely
affect
the lien of the Mortgage or Deed of Trust as insured.
2. The
subordination of the lien of a Mortgage or Deed of Trust to an easement in
favor
of a public utility company or a governmental agency or authority thereunder
with powers of eminent domain; this section shall include, without limitation,
the execution of partial satisfaction/release, partial reconveyances or the
execution of requests to trustees to accomplish same.
3. The
conveyance of the properties to the mortgage insurer, or the closing of the
title to the property to be acquired as real estate owned, or conveyance
of
title to real estate owned.
4. The
completion of loan assumption agreements.
5. The
full
satisfaction/release of a Mortgage or Deed of Trust or full reconveyance
upon
payment and discharge of all sums secured thereby, including, without
limitation, cancellation of the related Mortgage Note.
6. The
assignment of any Mortgage or Deed of Trust and the related Mortgage Note,
in
connection with the repurchase of the mortgage loan secured and evidenced
thereby.
7. The
full
assignment of a Mortgage or Deed of Trust upon payment and discharge of all
sums
secured thereby in conjunction with the refinancing thereof, including, without
limitation, the assignment of the related Mortgage Note.
8. With
respect to a Mortgage or Deed of Trust, the foreclosure, the taking of a
deed in
lieu of foreclosure, or the completion of judicial or non-judicial foreclosure
or termination, cancellation or rescission of any such foreclosure, including,
without limitation, any and all of the following acts:
a) the
substitution of trustee(s) serving under a Deed of Trust, in accordance with
state law and the Deed of Trust;
b) the
preparation and issuance of statements of breach or
non-performance;
c) the
preparation and filing of notices of default and/or notices of
sale;
d) the
cancellation/rescission of notices of default and/or notices of
sale;
e) the
taking of a deed in lieu of foreclosure; and
f) the
preparation and execution of such other documents and performance of such
other
actions as may be necessary under the terms of the Mortgage, Deed of Trust
or
state law to expeditiously complete said transactions in paragraphs 8(a)
through
8(e) above.
9. The
full
assignment of a Mortgage or Deed of Trust upon sale of a loan pursuant to
a
mortgage loan sale agreement for the sale of a loan or pool of loans, including,
without limitation, the assignment of the related Mortgage Note.
The
Undersigned gives said Attorney-in-Fact full power and authority to execute
such
instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this
Limited
Power of Attorney, each subject to the terms and conditions set forth in
the
related Pooling and Servicing Agreement and in accordance with the standard
of
care applicable to the servicer in the Pooling and Servicing Agreement as
fully
as the undersigned might or could do, and hereby does ratify and confirm
to all
that said Attorney-in-Fact shall lawfully do or cause to be done by authority
hereof. This Limited Power of Attorney shall be effective as of [SERVICING
TRANSFER EFFECTIVE DATE].
Nothing
contained herein shall (i) limit in any manner any indemnification provided
by
Xxxxx Fargo to the Owner under the Pooling and Servicing Agreement, or (ii)
be
construed to xxxxx Xxxxx Fargo the power to initiate or defend any suit,
litigation or proceeding in the name of the Undersigned except as specifically
provided for herein or under the Pooling and Servicing Agreement.
Xxxxx
Fargo hereby agrees to indemnify and hold the Undersigned and its directors,
officers, employees and agents harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits,
costs, expenses or disbursements of any kind or nature whatsoever incurred
by
reason or result of or in connection with the exercise by Xxxxx Fargo of
the
powers granted to it hereunder. The foregoing indemnity shall survive the
termination of this Limited Power of Attorney and the Pooling and Servicing
Agreement or the earlier resignation or removal of the Undersigned under
the
Pooling and Servicing Agreement.
Any
third
party without actual notice of fact to the contrary may rely upon the exercise
of the power granted under this Limited Power of Attorney; and may be satisfied
that this Limited Power of Attorney shall continue in full force and effect
and
has not been revoked unless an instrument of revocation has been made in
writing
by the undersigned, and such third party put on notice thereof. This Limited
Power of Attorney shall be in addition to and shall not revoke or in any
way
limit the authority granted by any previous power of attorney executed by
the
Undersigned.
IN
WITNESS WHEREOF, ____________________ pursuant to the Pooling and Servicing
Agreement, has caused its corporate seal to be hereto affixed and these presents
to be signed and acknowledged in its name and behalf by ______________________,
its duly elected and authorized _________________________ this ___ day of
_________________, 2007.
By:_____________________________________
Name:
__________________________________
Title:
___________________________________
Acknowledged
and Agreed
Xxxxx
Fargo Bank, N.A.
By:_____________________________________
Name:
Title:
EXHIBIT
J
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Corporate Trust Services—
Soundview
Home Loan Trust 2007-1
|
Re:
|
Soundview
Home Loan Trust 2007-1,
Asset-Backed
Certificates Series 2007-1
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Certificates, we certify
that (a) we understand that the Certificates are not being registered under
the
Securities Act of 1933, as amended (the “Act”), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
“accredited investor,” as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c)
we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended,
or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring
the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at
all
times to sell or otherwise dispose of the Certificates in accordance with
clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached
or
negotiated with any person with respect thereto, or taken any other action
which
would result in a violation of Section 5 of the Act, and (g) we will not
sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser
or
transferee has otherwise complied with any conditions for transfer set forth
in
the Pooling and Servicing Agreement.
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Very
truly yours,
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|
[NAME
OF TRANSFEREE]
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Authorized
Officer
|
FORM
OF
RULE 144A INVESTMENT LETTER
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Corporate Trust Services—
Soundview
Home Loan Trust 2007-1
|
Re:
|
Soundview
Home Loan Trust 2007-1,
Asset-Backed
Certificates Series 2007-1
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that
(a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(c)
we are not an employee benefit plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended, or a plan that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended, nor are we acting
on
behalf of any such plan, (d) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any
person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute
a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, (e) we are a “qualified institutional buyer” as that term is
defined in Rule 144A under the Securities Act and have completed either of
the
forms of certification to that effect attached hereto as Annex 1 or Annex
2. We
are aware that the sale to us is being made in reliance on Rule 144A. We
are
acquiring the Certificates for our own account or for resale pursuant to
Rule
144A and further, understand that such Certificates may be resold, pledged
or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account
of a
qualified institutional buyer to whom notice is given that the resale, pledge
or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
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Very
truly yours,
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[NAME
OF TRANSFEREE]
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Authorized
Officer
|
ANNEX
1 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis $ 1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
_________
Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan association
or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
_________
Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
_________
Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
_________
Broker-Dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
_________
Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
_________
State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
_________
ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
_________
Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
_________
Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The
term
“SECURITIES” as used herein DOES NOT INCLUDE (i) securities of issuers that are
affiliated with the Buyer, (ii) securities that are part of an unsold allotment
to or subscription by the Buyer, if the Buyer is a dealer, (iii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iv) bank
deposit notes and certificates of deposit (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value,
and
(ii) no current information with respect to the cost of those securities
has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and
if the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself
a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the
seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales
to the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each
of the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of
the
date of such purchase. In addition, if the Buyer is a bank or savings and
loan
is provided above, the Buyer agrees that it will furnish to such parties
updated
annual financial statements promptly after they become available.
|
Print
Name of Buyer
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Date:
|
|
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or
invest on a discretionary basis at least $10,000,000 in
securities.
ANNEX
2 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyers Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their
market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
_________
The
Buyer
owned $_________ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
_________
The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$___________ in securities (other than the excluded securities referred to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The
term
“FAMILY OF INVESTMENT COMPANIES” as used herein means two or more registered
investment companies (or series thereof) that have the same investment adviser
or investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority
owned subsidiary of the other).
4. The
term
“SECURITIES” as used herein does not include (i) securities of issuers that are
affiliated with the Buyer or are part of the Buyer’s Family of Investment
Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned
but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the
Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of
such
purchase.
|
Print
Name of Buyer or Adviser
|
||||||
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By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
|
IF
AN ADVISER:
|
||||||
|
Print
Name of Buyer
|
||||||
|
Date:
|
||||||
EXHIBIT
K
FORM
OF
TRANSFER AFFIDAVIT FOR RESIDUAL CERTIFICATES
PURSUANT
TO SECTION 5.02(D)
SOUNDVIEW
HOME LOAN TRUST 2007-1
ASSET-BACKED
CERTIFICATES, SERIES 2007-1
|
STATE
OF
|
)
|
|
)
ss:
|
|
|
COUNTY
OF
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of, the proposed Transferee of an Ownership Interest
in a Residual Certificate (the “Certificate”)
issued
pursuant to the Pooling and Servicing Agreement dated as of February 1, 2007
(the “Agreement”),
among
Financial Asset Securities Corp., as depositor (the “Depositor”),
Ocwen
Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A. as
master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”) and Deutsche Bank National Trust Company, as trustee (the
“Trustee”).
Capitalized terms used, but not defined herein or in Exhibit 1 hereto,
shall have the meanings ascribed to such terms in the Agreement. The Transferee
has authorized the undersigned to make this affidavit on behalf of the
Transferee for the benefit of the Depositor and the Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account. The Transferee has no knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman)
for
a Person that is not a Permitted Transferee, on the agent; and (iii) the
Person otherwise liable for the tax shall be relieved of liability for the
tax
if the subsequent Transferee furnished to such Person an affidavit that such
subsequent Transferee is a Permitted Transferee and, at the time of Transfer,
such Person does not have actual knowledge that the affidavit is
false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record
holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed the provisions of Section 5.02(d) of the Agreement
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions
on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by
the provisions of Section 5.02(d) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that
any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom
the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person
that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit L to the
Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due, intends
to pay
its debts as they come due in the future, and understands that the taxes
payable
with respect to the Certificate may exceed the cash flow with respect thereto
in
some or all periods and intends to pay such taxes as they become due. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is ___________.
9. The
Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable
to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
[_] The
present value of the anticipated tax liabilities associated with holding
the
Certificate, as applicable, does not exceed the sum of:
|
(i)
|
the
present value of any consideration given to the Transferee to acquire
such
Certificate;
|
|
|
(ii)
|
the
present value of the expected future distributions on such Certificate;
and
|
|
|
(iii)
|
the
present value of the anticipated tax savings associated with holding
such
Certificate as the related REMIC generates
losses.
|
For
purposes of this calculation, (i) the Transferee is assumed to pay tax at
the
highest rate currently specified in Section 11(b) of the Code (but the tax
rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject
to the
alternative minimum tax under Section 55 of the Code in the preceding two
years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using
a
discount rate equal to the short-term Federal rate prescribed by Section
1274(d)
of the Code for the month of the transfer and the compounding period used
by the
Transferee.
[_] The
transfer of the Certificate complies with U.S. Treasury Regulations Sections
1.860E-1(c)(5) and (6) and, accordingly,
|
(i)
|
the
Transferee is an “eligible corporation,” as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), as to which income from
the
Certificate will only be taxed in the United States;
|
|
|
(ii)
|
at
the time of the transfer, and at the close of the Transferee’s two fiscal
years preceding the year of the transfer, the Transferee had gross
assets
for financial reporting purposes (excluding any obligation of a
person
related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets
in
excess of $10 million;
|
|
|
(iii)
|
the
Transferee will transfer the Certificate only to another “eligible
corporation,” as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements
of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5)
of
the U.S. Treasury Regulations; and
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|
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(iv)
|
the
Transferee determined the consideration paid to it to acquire the
Certificate based on reasonable market assumptions (including,
but not
limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and
other
factors specific to the Transferee) that it has determined in good
faith.
|
[_] None
of the above.
13. The
Transferee is not an employee benefit plan that is subject to Title I of
ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any Federal, state or local law that is substantially similar to Title I
of
ERISA or Section 4975 of the Code, and the Transferee is not acting on behalf
of
or investing plan assets of such a plan.
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
day
of
,
20 .
|
[NAME
OF TRANSFEREE]
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
|
[Corporate
Seal]
|
|
ATTEST:
|
|
[Assistant]
Secretary
|
Personally
appeared before me the above-named __________, known or proved to me to be
the
same person who executed the foregoing instrument and to be the ___________
of
the Transferee, and acknowledged that he executed the same as his free act
and
deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this
day
of
,
20 .
|
NOTARY
PUBLIC
|
|
My
Commission expires the __ day
of
_________, 20__
|
EXHIBIT
L
FORM
OF
TRANSFEROR CERTIFICATE
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Corporate Trust Services—
Soundview
Home Loan Trust 2007-1
|
Re:
|
Soundview
Home Loan Trust 2007-1,
Asset-Backed
Certificates Series 2007-1
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that
(a) we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act,
(b) we
have not offered or sold any Certificates to, or solicited offers to buy
any
Certificates from, any person, or otherwise approached or negotiated with
any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act,
(c) to
the extent we are disposing of a Class [ ] Certificate, we have no knowledge
the
Transferee is not a Permitted Transferee and (d) no purpose of the proposed
disposition of a Class [ ] Certificate is to impede the assessment or collection
of tax.
|
Very
truly yours,
|
|
|
TRANSFEROR
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
M
FORM
OF
ERISA REPRESENTATION LETTER
_____________,
20__
|
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Corporate Trust Services—
Soundview
Home Loan Trust 2007-1
|
|
Re:
|
Soundview
Home Loan Trust 2007-1,
Asset-Backed
Certificates Series 2007-1
|
Dear
Sirs:
_______________________
(the “Transferee”) intends to acquire from _____________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance Soundview Home
Loan Trust 2007-1, Asset-Backed Certificates Series 2007-1, Class
[C][P][R[-X]][X] (the “Certificates”), issued pursuant to a Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) dated as of February
1, 2007 among Financial Asset Securities Corp. as depositor (the “Depositor”),
Ocwen Loan Servicing, LLC as servicer (the “Servicer”), Xxxxx Fargo Bank, N.A.
as master servicer and trust administrator (the “Master Servicer” and “Trust
Administrator”) and Deutsche Bank National Trust Company as trustee (the
“Trustee”). Capitalized terms used herein and not otherwise defined shall have
the meanings assigned thereto in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to, and covenants with
the
Depositor, the Trustee and the Servicer the following:
The
Certificates (i) are not being acquired by, and will not be transferred to,
any
employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or other
retirement arrangement, including individual retirement accounts and annuities,
Xxxxx plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that is subject to Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not being
acquired with “plan assets” of a Plan within the meaning of the Department of
Labor (“DOL”) regulation, 29 C.F.R.ss.2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan assets within
the meaning of the DOL regulation at 29 X.X.X.xx. 2510.3-101.
|
Very
truly yours,
|
|
|
[Transferee]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
N-1
FORM
CERTIFICATION TO BE PROVIDED BY THE MASTER SERVICER WITH FORM 10-K
|
Re:
|
Soundview
Home Loan Trust, Series 2007-1
Asset
Backed Certificates, Series 2007-1
|
Re:
Soundview
Home Loan Trust, Series 2007-1
Asset
Backed Certificates, Series
2007-1
Certification
I,
[identify the certifying individual], certify that:
1. I
have
reviewed this annual report on Form 10-K, and all reports on Form 10-D required
to be filed in respect of the period covered by this report on Form 10-K
[identify issuing entity] (i.e., the name of the specific deal to which this
certification relates rather than just the name of the Depositor)] (the
“Exchange Act periodic reports”);
2. Based
on
my knowledge, the Exchange Act periodic reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
this report;
3. Based
on
my knowledge, all of the distribution, servicing and other information required
to be provided under Form 10-D for the period covered by this report is included
in the Exchange Act periodic reports;
4. Based
on
my knowledge and compliance statement required in this report under Item
1123 of
Regulation AB, and except as disclosed in the Exchange Act periodic reports,
the
servicer has fulfilled its obligations under the Pooling and Servicing Agreement
in all material respects; and
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except
as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated party: Deutsche Bank National Trust
Company.
XXXXX
FARGO BANK, N.A.
By:____________________________________
Name:
Title:
EXHIBIT
N-2
FORM
CERTIFICATION TO BE
PROVIDED
TO MASTER SERVICER BY THE SERVICER
Re:
Soundview
Home Loan Trust, Series 2007-1
Asset
Backed Certificates, Series
2007-1
I,
________________________________, the _______________________ of Xxxxx Fargo
Bank, N.A., certify to Financial Asset Securities Corp. and the Master Servicer,
and their officers, with the knowledge and intent that they will rely upon
this
certification, 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 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 the Master Servicer 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 Master
Servicer;
(4) I
am
responsible for reviewing the activities performed by the Company as servicer
under 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
(5) The
Compliance Statement required to be delivered by the Company pursuant to
[the
Agreement], and the Servicing Assessment and Attestation Report required
to be
provided by the Company and by any Subservicer and Subcontractor pursuant
to the
Agreement, have been provided to [Xxxxx Fargo]. Any material instances of
noncompliance described in such reports have been disclosed to [Xxxxx Fargo].
Any material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date:
By:_____________________
Name:
EXHIBIT
N-3
FORM
CERTIFICATION TO BE
PROVIDED
TO MASTER SERVICER BY THE SERVICER
Re:
Soundview
Home Loan Trust, Series 2007-1
Asset
Backed Certificates, Series 2007-1
I,
________________________________, the _______________________ of Ocwen Loan
Servicing, LLC, certify to Financial Asset Securities Corp. and the Master
Servicer, and their officers, with the knowledge and intent that they will
rely
upon this certification, 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 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 the Master Servicer 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 Master
Servicer;
(4) I
am
responsible for reviewing the activities performed by the Company as servicer
under 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
(5) The
Compliance Statement required to be delivered by the Company pursuant to
[the
Agreement], and the Servicing Assessment and Attestation Report required
to be
provided by the Company and by any Subservicer and Subcontractor pursuant
to the
Agreement, have been provided to [Xxxxx Fargo]. Any material instances of
noncompliance described in such reports have been disclosed to [Xxxxx Fargo].
Any material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date:
By:_____________________
Name:
EXHIBIT
O
FORM
OF
INTEREST RATE CAP AGREEMENT
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
000
XXXXXXX XXXXXX
XXX
XXXX,
XXX XXXX 00000
000-000-0000
| DATE: |
February
28, 2007
|
| TO: |
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely as
Cap
Trustee on behalf of the Cap Trust with respect to the Soundview
Home Loan
Trust 2007-1, Asset-Backed Certificates, Series 2007-1
|
| ATTENTION: |
Client
Manager - Soundview 2007-1
|
| FACSIMILE: |
000-000-0000
|
| TO: |
The
Royal Bank of Scotland plc, London
|
| ATTENTION: |
Xxxxxxx
Xxxxxxx
|
| FACSIMILE: |
000-000-0000
|
| FROM: |
Derivatives
Documentation
|
| TELEPHONE: |
000-000-0000
|
| FACSIMILE: |
000-000-0000
|
| RE: |
Novation
Confirmation
|
| REFERENCE UMBER(S): |
FXNEC9258-BXNE218671
|
The
purpose of this letter is to confirm the terms and conditions of the Novation
Transaction entered into between the parties and effective from the Novation
Date specified below. This Novation Confirmation constitutes a “Confirmation” as
referred to in the New Agreement specified below.
| 1. |
The
definitions and provisions contained in the 2004 ISDA Novation
Definitions
(the “Definitions”) and the terms and provisions of the 2000 ISDA
Definitions,
as
published by the International Swaps and Derivatives Association,
Inc. and
amended from time to time, are incorporated in this Novation Confirmation.
In the event of any inconsistency between (i) the Definitions,
(ii) the
2000 ISDA Definitions, and/or (iii) the Novation Agreement and
this
Novation Confirmation, this Novation Confirmation will govern.
|
| 2. |
The
terms of the Novation Transaction to which this Novation Confirmation
relates are as follows:
|
|
Novation
Trade Date:
|
February
28, 2007
|
|
|
Novation
Date:
|
February
28, 2007
|
|
|
Novated
Amount:
|
As
set forth in the New Confirmation
|
|
|
Transferor
1:
|
The
Royal Bank of Scotland plc
|
|
|
Transferor
2:
|
Bear
Xxxxxxx Bank plc
|
|
|
Transferee
1:
|
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely as
Cap
Trustee on behalf of the Cap Trust with respect to the Soundview
Home Loan
Trust 2007-1, Asset-Backed Certificates, Series 2007-1
|
|
|
Transferee
2:
|
Bear
Xxxxxxx Financial Products Inc.
|
|
|
New
Agreement (between Transferee 1
and
Transferee 2):
|
The Master Agreement as defined in the New Confirmation |
| 3. |
The
terms of the Old Transaction to which this Novation Confirmation
relates,
for identification purposes, are as
follows:
|
|
Trade
Date of Old Transaction:
|
February
23, 2007
|
|
|
Effective
Date of Old Transaction:
|
November
25, 2007
|
|
|
Termination
Date of Old Transaction:
|
February
25, 2012
|
| 4. |
The
terms of the New Transactions to which this Novation Confirmation
relates
shall be as specified in the New Confirmation attached hereto as
Exhibit
A, including the Credit Support Annex attached hereto as Annex
A.
|
|
Full
First Calculation Period:
|
Applicable
|
| 5. |
Offices:
|
|
Transferor
1:
|
London
|
|
|
Transferor
2:
|
Not
Applicable
|
|
|
Transferee
1:
|
Not
Applicable
|
|
|
Transferee
2:
|
Not
Applicable
|
The
parties confirm their acceptance to be bound by this Novation Confirmation
as of
the Novation Date by executing a copy of this Novation Confirmation and
returning a facsimile of the fully-executed Novation Confirmation to
000-000-0000.
Transferor
1 and Transferor 2, by their respective execution of a copy of this Novation
Confirmation, each agrees to the terms of the Novation Confirmation as it
relates to the Old Transaction. Transferee 1 and Transferee 2, by their
respective execution of a copy of this Novation Confirmation, each agrees
to the
terms of the Novation Confirmation as it relates to the New Transaction.
For
inquiries regarding U.S. Transactions, please contact Derivatives
Documentation
by
telephone at 000-000-0000.
For all
other inquiries please contact Derivatives
Documentation by
telephone at 000-0-000-0000.
|
The
Royal Bank of Scotland plc
By:
Greenwich Capital Markets, Inc., its agent
By:
_____________________________
Name:
Title:
Date:
|
Bear
Xxxxxxx Bank plc
By:
_____________________________
Name:
Title:
Date:
|
|
|
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely as
Cap
Trustee on behalf of the Cap Trust with respect to the Soundview
Home Loan
Trust 2007-1, Asset-Backed Certificates, Series
2007-1
By:
_____________________________
Name:
Title:
Date:
|
Bear
Xxxxxxx Financial Products Inc.
By:
_____________________________
Name:
Title:
Date:
|
lm/er
 |
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
000
XXXXXXX XXXXXX
XXX
XXXX, XXX XXXX 00000
212-272-4009
|
Exhibit
A
|
DATE:
|
February
28, 2007
|
|
|
|
|
TO:
|
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely
as Cap
Trustee on behalf of the Cap Trust with respect to the Soundview
Home Loan
Trust 2007-1, Asset-Backed Certificates, Series 2007-1
|
|
ATTENTION:
|
Client
Manager - Soundview 2007-1
|
|
TELEPHONE:
|
000-000-0000
|
|
FACSIMILE:
|
000-000-0000
|
|
FROM:
|
Derivatives
Documentation
|
|
TELEPHONE:
|
000-000-0000
|
|
FACSIMILE:
|
000-000-0000
|
|
SUBJECT:
|
Fixed
Income Derivatives Confirmation and Agreement
|
|
REFERENCE
NUMBER:
|
FXNEC9258
|
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
Bear Xxxxxxx Financial Products Inc. (“Party
A”) and
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely as Cap Trustee
on
behalf of the Cap Trust with respect to the Soundview Home Loan Trust 2007-1,
Asset-Backed Certificates, Series 2007-1 (“Party
B”).
Reference is hereby made to the Pooling and Servicing Agreement, dated
as
of February
1, 2007, among Financial Asset Securities Corp., as Depositor, Ocwen Loan
Servicing, LLC., as Servicer, Xxxxx Fargo Bank, N.A., as Master Servicer
and
Trust Administrator, and Deutsche Bank National Trust Company, as Trustee
(the
“Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you and
us to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit
Support
Annex to the Schedule.
| 1. |
This
Confirmation shall supplement, form a part of, and be subject
to an
agreement in the form of the ISDA Master Agreement (Multicurrency
- Cross
Border) as published and copyrighted in 1992 by the International
Swaps
and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement in such form
on the
date hereof, with a Schedule as set forth in Item 3 of this Confirmation,
and an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject
to New York Law Only version) as published and copyrighted in
1994 by the
International Swaps and Derivatives Association, Inc., with Paragraph
13
thereof as set forth in Annex A hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described herein
shall be the
sole Transaction governed by such ISDA Master Agreement. In the
event of
any inconsistency among any of the following documents, the relevant
document first listed shall govern: (i) this Confirmation, exclusive
of
the provisions set forth in Item 3 hereof and Annex A hereto;
(ii) the
provisions set forth in Item 3 hereof, which are incorporated
by reference
into the Schedule; (iii) the Credit Support Annex; (iv) the Definitions;
and (v) the ISDA Master Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference
herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
2. The
terms
of the particular Transaction to which this Confirmation relates are as
follows:
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth for
such period on
Schedule I attached hereto.
|
|
Trade
Date:
|
February
28, 2007
|
|
Effective
Date:
|
November
25, 2007
|
|
Termination
Date:
|
February
25, 2012, subject to adjustment in accordance with the Business
Day
Convention.
|
|
Fixed
Amount (Premium):
|
Inapplicable.
Premium has been paid under the Old Transaction.
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
Party
A
|
|
Cap
Rate:
|
5.275000%
|
|
Floating
Rate Payer
|
|
|
Period
End Dates:
|
The
25th calendar day of each month during the Term of this Transaction,
commencing December 25, 2007 and ending on the Termination
Date, subject
to adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Rate Payer
|
|
|
Payment
Dates:
|
Early
Payment shall be applicable. The Fixed Rate Payer Payment Date
shall be
one Business Day prior to each Fixed Rate Payer Period End
Date.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA,
provided, however, that if the Floating Rate determined from
such Floating
Rate Option for any Calculation Period is greater than 9.00000%
then the
Floating Rate for such Calculation Period shall be deemed to
be
9.00000%.
|
|
Floating
Amount:
|
To
be determined in accordance with the following Formula:
|
|
Greater
of (i) Scale Factor * (Floating Rate Option - Cap Rate) * Notional
Amount
* Floating Rate Day Count Fraction; and (ii) zero.
|
|
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day
|
|
|
Count
Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York
|
|
Business
Day Convention:
|
Following
|
|
Scale
Factor:
|
250
|
|
Calculation
Agent:
|
Party A |
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
|
(b)
|
“Specified
Transaction”
will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party
means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will
not
apply to a specific party means that the other party shall not have such
rights.
| (i) |
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will
apply to
Party B; provided, however, that notwithstanding anything to
the contrary
in Section 5(a)(i) or in Paragraph 7 of the Credit Support Annex,
any
failure by Party A to comply with or perform any obligation to
be complied
with or performed by Party A under the Credit Support Annex shall
not
constitute an Event of Default under Section 5(a)(i) unless (A)
a Required
Ratings Downgrade Event has occurred and been continuing for
30 or more
Local Business Days and (B) such failure is not remedied on or
before the
third Local Business Day after notice of such failure is given
to Party
A.
|
| (ii) |
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will
not apply to
Party B.
|
| (iii) |
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided, however, that notwithstanding anything
to the
contrary in Section 5(a)(iii)(1), any failure by Party A to comply
with or
perform any obligation to be complied with or performed by Party
A under
the Credit Support Annex shall not constitute an Event of Default
under
Section 5(a)(iii) unless (A) a Required Ratings Downgrade Event
has
occurred and been continuing for 30 or more Local Business Days
and (B)
such failure is not remedied on or before the third Local Business
Day
after notice of such failure is given to Party
A.
|
| (iv) |
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will
not apply to
Party B.
|
| (v) |
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will
not apply to
Party B.
|
| (vi) |
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will
not apply to
Party B. For purposes of Section 5(a)(vi), solely with respect
to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14.
“Threshold
Amount” means USD 100,000,000.
| (vii) |
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2), (6)
(to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not apply
to Party
B; provided that, with respect to Party B only, Section 5(a)(vii)(4)
is
hereby amended by adding after the words “against it” the words
“(excluding any proceeding or petition instituted or presented
by Party A
or its Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by
deleting the words “to (7) inclusive” and inserting lieu thereof “, (3),
(4) as amended, (5), (6) as amended, or
(7)”.
|
| (viii) |
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will
apply to
Party B.
|
(d)
Termination
Events.
The
statement below that a Termination Event will apply to a specific party
means
that upon the occurrence of such a Termination Event, if such specific
party is
the Affected Party with respect to a Tax Event, the Burdened Party with
respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected
Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that
such an
event will not apply to a specific party means that such party shall not
have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall have
the
right to designate an Early Termination Date in accordance with Section
6 of
this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to Party
B.
|
(ii)
|
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A and will
apply to
Party B.
|
|
(iii)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided that Party A shall not be entitled to designate
an Early
Termination Date by reason of a Tax Event upon Merger in respect
of which
it is the Affected Party.
|
|
(iv)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and
will not
apply to Party B.
|
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will
not apply to
Party B.
|
(f)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
| (i) |
The
Second Method will apply.
|
| (ii) |
Market
Quotation will apply, provided, however, that, if Party A is
the
Defaulting Party or the sole Affected Party, the following provisions
will
apply:
|
|
(A)
|
Section
6(e) is hereby amended by inserting on the first line thereof
the words
“or is effectively designated” after “If an Early Termination Date
occurs”;
|
|
(B)
|
The
definition of Market Quotation in Section 14 shall be deleted
in its
entirety and replaced with the following:
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, and a party making
the
determination, an amount determined on the basis of one or more Firm Offers
from
Reference Market-makers that are Eligible Replacements. Each Firm Offer
will be
(1) for an amount that would be paid to Party B (expressed as a negative
number)
or by Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (2) made on the basis that Unpaid Amounts in respect of
the
Terminated Transaction or group of Transactions are to be excluded but,
without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date are to be included.
The
party making the determination (or its agent) will request each Reference
Market-maker that is an Eligible Replacement to provide its Firm Offer
to the
extent reasonably practicable as of the same day and time (without regard
to
different time zones) on or as soon as reasonably practicable after the
designation or occurrence of the relevant Early Termination Date. The day
and
time as of which those Firm Offers are to be provided (the “bid time”) will be
selected in good faith by the party obliged to make a determination under
Section 6(e), and, if each party is so obliged, after consultation with
the
other. If at least one Firm Offer from an Approved Replacement (which,
if
accepted, would determine the Market Quotation) is provided at the bid
time, the
Market Quotation will be the Firm Offer (among such Firm Offers as specified
in
clause (C) below) actually accepted by Party B no later than the Business
Day
immediately preceding the Early Termination Date. If no Firm Offer from
an
Approved Replacement (which, if accepted, would determine the Market Quotation)
is provided at the bid time, it will be deemed that the Market Quotation
in
respect of such Terminated Transaction or group of Transactions cannot
be
determined.
|
(C)
|
If
more than one Firm Offer from an Approved Replacement (which,
if accepted,
would determine the Market Quotation) is provided at
the bid time,
Party B shall accept the Firm Offer (among such Firm Offers)
which would
require either (x) the lowest payment by Party B to the Reference
Market-maker, to the extent Party B would be required to make
a payment to
the Reference Market-maker or (y) the highest payment from the
Reference
Market-maker to Party B, to the extent the Reference Market-maker
would be
required to make a payment to Party B. If only one Firm Offer
from an
Approved Replacement (which, if accepted, would determine the
Market
Quotation) is provided at the bid time, Party B shall accept
such Firm
Offer.
|
|
(D)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so.
|
|
(E)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
|
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect
of the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid
Amounts
owing to Party B; provided, however, that (x) the amounts payable under
the
immediately preceding clauses (II) and (III) shall be subject to netting
in
accordance with Section 2(c) of this Agreement and (y) notwithstanding
any other
provision of this Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted-off against any amount payable
by
Party B under the immediately preceding clause (I).”
(g)
“Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)
Tax
Representations.
|
(i)
|
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
|
(A)
Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment
(other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement.
In
making
this representation, it may rely on:
|
(1)
|
the
accuracy of any representations made by the other party pursuant
to
Section 3(f) of this Agreement;
|
|
(2)
|
the
satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of
this Agreement and the accuracy and effectiveness of any document
provided
by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of
this
Agreement; and
|
|
(3)
|
the
satisfaction of the agreement of the other party contained in
Section 4(d)
of this Agreement, provided that it shall not be a breach of
this
representation where reliance is placed on clause (ii) and the
other party
does not deliver a form or document under Section 4(a)(iii) by
reason of
material prejudice to its legal or commercial
position.
|
(B)
Party
B
makes the following representation(s):
None.
(ii) Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
Party
A
is a corporation organized under the laws of the State of Delaware and
its U.S.
taxpayer identification number is 00-0000000.
(B)
Party
B
makes the following representation(s):
None.
|
(b)
|
Tax
Provisions.
|
|
(i)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, such that
Party B
shall not be required to pay any additional amounts referred
to
therein.
|
|
(ii)
|
Indemnifiable
Tax.
Notwithstanding the definition of “Indemnifiable Tax” in Section 14 of
this Agreement, all Taxes in relation to payments by Party A
shall be
Indemnifiable Taxes (including any Tax imposed in relation to
a Credit
Support Document or in relation to any payment thereunder) unless
(i) such
Taxes are assessed directly against Party B and not by deduction
or
withholding by Party A or (ii) arise as a result of a Change
in Tax Law
(in which case such Tax shall be an Indemnifiable Tax only if
such Tax
satisfies the definition of Indemnifiable Tax provided in Section
14). In
relation to payments by Party B, no Tax shall be an Indemnifiable
Tax.
|
Part
3. Agreement
to Deliver Documents.
(a) For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
|
Party
required to
deliver
document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
||
|
Party
A
|
An
original properly completed and executed United States Internal
Revenue
Service Form W-9 (or any successor thereto) with respect to any
payments
received or to be received by Party A that eliminates U.S. federal
withholding and backup withholding Tax on payments to Party A
under this
Agreement.
|
(i)
upon execution of this Agreement, (ii) on or before the first
payment date
under this Agreement, including any Credit Support Document,
(iii)
promptly upon the reasonable demand by Party B, (iv) prior to
the
expiration or obsolescence of any previously delivered form,
and (v)
promptly upon the information on any such previously delivered
form
becoming inaccurate or incorrect.
|
||
|
Party
B
|
(i)
Upon execution of this Agreement, an original properly completed
and
executed United States Internal Revenue Service Form W-9 (or
any successor
thereto) with respect to any payments received or to be received
by the
initial beneficial owner of payments to Party B that eliminates
U.S.
federal withholding and backup withholding Tax on payments to
Party B
under this Agreement, and (ii) thereafter, the appropriate tax
certification form (i.e., IRS Form W-9 or IRS Form X-0XXX, X-0XXX,
X-0XXX
or W-8ECI, as applicable (or any successor form thereto)) with
respect to
any payments received or to be received by the beneficial owner
of
payments to Party B under this Agreement from time to time.
|
(i)
upon execution of this Agreement, (ii) on or before the first
payment date
under this Agreement, including any Credit Support Document,
(iii) in the
case of a tax certification form other than a Form W-9, before
December 31
of each third succeeding calendar year, (iv) promptly upon the
reasonable
demand by Party B, (v) prior to the expiration or obsolescence
of any
previously delivered form, and (vi) promptly upon the information
on any
such previously delivered form becoming inaccurate or
incorrect.
|
(b) For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
|
Party
required to
deliver
document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|||
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for
it to execute
and deliver the Agreement, this Confirmation, and any Credit
Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|||
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the
incumbency
and authority of the respective officers of the party signing
the
Agreement, this Confirmation, and any relevant Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|||
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements
certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country
in which
Party A is organized
|
Upon
request by Party B
|
Yes
|
|||
|
Party
A
|
Quarterly
Financial Statements of Party A containing unaudited, consolidated
financial statements of Party A’s fiscal quarter prepared in accordance
with generally accepted accounting principles in the country
in which
Party A is organized
|
Upon
request by Party B
|
Yes
|
|||
|
Party
A and
Party
B
|
An
opinion of counsel of such party regarding the enforceability
of this
Agreement in a form reasonably satisfactory to the other
party.
|
Upon
the execution and delivery of this Agreement
|
No
|
|||
|
Party
B
|
An
executed copy of the Pooling and Servicing Agreement
|
Promptly
upon filing of such agreement with the U.S. Securities and Exchange
Commission
|
No
|
Part
4. Miscellaneous.
|
(a)
|
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
|
|
Address
for notices or communications to Party A:
|
||
|
Address:
|
000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
|
|
|
Attention:
|
DPC
Manager
|
|
|
Facsimile:
|
(000)
000-0000
|
|
|
with
a copy to:
|
||
|
Address:
|
Xxx
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
|
|
|
Attention:
|
Derivative
Operations 7th Floor
|
|
|
Facsimile:
|
(000)
000-0000
|
|
|
(For
all purposes)
|
||
|
Address
for notices or communications to Party B:
|
||
|
Address:
|
Xxxxx
Fargo Bank, N.A.
|
|
|
0000
Xxx Xxxxxxxxx Xxxx
|
||
|
Xxxxxxxx,
XX 00000
|
||
|
Attention:
|
Client
Manager - Soundview 2007-1
|
|
|
Facsimile:
|
000-000-0000
|
|
|
Phone:
|
000-000-0000
|
|
|
(For
all purposes)
|
||
(b)
Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this Agreement;
neither
Party A nor Party B has any Offices other than as set forth in
the Notices
Section.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is not a Multibranch Party.
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A.
|
(f) Credit
Support Document.
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
Party
B: The
Credit Support Annex.
|
(g)
|
Credit
Support Provider.
|
Party
A: The
guarantor under any guarantee in support of Party A’s obligations under this
Agreement.
Party
B: None.
|
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of the
State of
New York shall govern their rights and duties in whole, without
regard to
the conflict of law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
|
|
(i)
|
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will
apply to
each Transaction hereunder.
|
|
(j)
|
Affiliate.
Party A and Party B shall be deemed to have no Affiliates for
purposes of
this Agreement, including for purposes of Section
6(b)(ii).
|
Part
5. Others
Provisions.
|
(a)
|
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions
as published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to a
“Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
|
(b)
Amendments
to ISDA Master Agreement.
|
(i)
|
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
|
|
(ii)
|
[Reserved.]
|
|
(iii)
|
[Reserved.]
|
|
(iv)
|
Representations.
Section 3 is hereby amended by adding at the end thereof the
following
subsection (g):
|
|
“(g)
|
Relationship
Between Parties.
|
|
(1)
|
Nonreliance.
(i) It is not relying on any statement or representation of the
other
party regarding the Transaction (whether written or oral), other
than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction, (ii) it has consulted with its own
legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and
upon any
advice from such advisors as it has deemed necessary and not
upon any view
expressed by the other party, (iii) it is not relying on any
communication
(written or oral) of the other party as investment advice or
as a
recommendation to enter into this Transaction; it being understood
that
information and explanations related to the terms and conditions
of this
Transaction shall not be considered investment advice or a recommendation
to enter into this Transaction, and (iv) it has not received
from the
other party any assurance or guaranty as to the expected results
of this
Transaction.
|
|
(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and
has made its
own decision to enter into the Transaction and (ii) it understands
the
terms, conditions and risks of the Transaction and is willing
and able to
accept those terms and conditions and to assume those risks,
financially
and otherwise.
|
|
(3)
|
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
|
|
(4)
|
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible swap participant” as such term is
defined in, Section 35.1(b)(2) of the regulations (17 C.F.R.
35)
promulgated under, and an “eligible contract participant” as defined in
Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
|
|
(v)
|
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words
“or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) deleting the last paragraph thereof and inserting the
following
in lieu thereof:
|
“Notwithstanding
anything to the contrary in Section 7 (as amended herein) and Part 5(f),
any
transfer by Party A under this Section 6(b)(ii) shall not require the consent
of
Party B for such transfer if the following conditions are
satisfied:
|
(1)
|
the
transferee (the “Section 6 Transferee”) is an Eligible
Replacement;
|
|
(2)
|
if
the Section 6 Transferee is domiciled in a different country
or political
subdivision thereof from both Party A and Party B, such transfer
satisfies
the Rating Agency Condition;
|
|
(3)
|
the
Section 6 Transferee will not, as a result of such transfer,
be required
on the next succeeding Scheduled Payment Date to withhold or
deduct on
account of any Tax (except in respect of default interest) amounts
in
excess of that which Party A would, on the next succeeding Scheduled
Payment Date have been required to so withhold or deduct unless
the
Section 6 Transferee would be required to make additional payments
pursuant to Section 2(d)(i)(4) corresponding to such excess;
|
|
(4)
|
a
Termination Event or Event of Default does not occur as a result
of such
transfer; and
|
|
(5)
|
the
Section 6 Transferee confirms in writing that it will accept
all of the
interests and obligations in and under this Agreement which are
to be
transferred to it in accordance with the terms of this
provision.”
|
|
(vi)
|
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph 1 and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
|
|
(vii)
|
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby
amended by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events.
The following Additional Termination Events will
apply:
|
(i)
S&P/Fitch
First Level Downgrade.
If an
S&P/Fitch Approved Ratings Downgrade Event has occurred and is continuing
and Party A fails to take any action described under Part (5)(d)(i)(1),
within
the time period specified therein, then an Additional Termination Event
shall
have occurred with respect to Party A, Party A shall be the sole Affected
Party
with respect to such Additional Termination Event and all Transactions
hereunder
shall be Affected Transaction.
(ii)
Xxxxx’x
First Rating Trigger Collateral.
If (A)
it is not the case that a Xxxxx’x Second Trigger Ratings Event has occurred and
been continuing for 30 or more Local Business Days and (B) Party
A
has failed to comply with or perform any obligation to be complied with
or
performed by Party A in accordance with the Credit Support Annex, then
an
Additional Termination Event shall have occurred with respect to Party
A, Party
A shall be the sole Affected Party with respect to such Additional Termination
Event and all Transactions hereunder shall be Affected Transactions.
(iii)
S&P/Fitch
Second Level Downgrade.
If an
S&P/Fitch Required Ratings Downgrade Event has occurred and is continuing
and Party A fails to take any action described under Part (5)(d)(i)(2)
within
the time period specified therein, then an Additional Termination Event
shall
have occurred with respect to Party A, Party A shall be the sole Affected
Party
with respect to such Additional Termination Event and all Transactions
hereunder
shall be Affected Transaction.
(iv)
Xxxxx’x
Second Rating Trigger Replacement.
If (A) a
Xxxxx’x Second Trigger Ratings Event has occurred and been continuing for 30
or
more Local Business Days and (B) (i) at least one Eligible Replacement
has made
a Firm Offer to be the transferee of all of Party A’s rights and obligations
under this Agreement (and such Firm Offer remains an offer that will become
legally binding upon such Eligible Replacement upon acceptance by the offeree)
and/or (ii) an Eligible Guarantor has made a Firm Offer to provide an Eligible
Guarantee (and such Firm Offer remains an offer that will become legally
binding
upon such Eligible Guarantor immediately upon acceptance by the offeree),
then
an Additional Termination Event shall have occurred with respect to Party
A,
Party A shall be the sole Affected Party with respect to such Additional
Termination Event and all Transactions hereunder shall be Affected Transactions.
(v)
Amendment
of the Pooling and Servicing Agreement.
If,
without the prior written consent of Party A where such consent is required
under the Pooling and Servicing Agreement (such consent not to be unreasonably
withheld), an amendment is made to the Pooling and Servicing Agreement
which
amendment could reasonably be expected to have a material adverse effect
on the
interests of Party A under this Agreement, an Additional Termination Event
shall
have occurred with respect to Party B, Party B shall be the sole Affected
Party
with respect to such Additional Termination Event and all Transactions
hereunder
shall be Affected Transactions.
(vi) Optional
Termination of Securitization. An
Additional Termination Event shall occur upon the notice to Certificateholders
of an Optional Termination becoming unrescindable in accordance with Article
X of
the
Pooling and Servicing Agreement. Party B shall be the sole Affected Party
with
respect to such Additional Termination Event; provided, however, that
notwithstanding anything to the contrary in Section 6(b)(iv), only Party
B may
designate an Early Termination Date in respect of this Additional Termination
Event.
|
(d)
|
Rating
Agency Downgrade.
|
(i)
S&P/Fitch
Downgrade:
|
(1)
|
In
the event that an S&P/Fitch Approved Ratings Downgrade Event occurs
and is continuing, then within 30 days after such rating downgrade,
Party
A shall, subject to the Rating Agency Condition with respect
to S&P
and Fitch, at its own expense, either (i) procure a Permitted
Transfer,
(ii) obtain an Eligible Guarantee or (iii) post collateral in
accordance
with the Credit Support Annex.
|
|
(2)
|
In
the event that an S&P/Fitch Required Ratings Downgrade Event occurs
and is continuing, then within 10 Local Business Days after such
rating
withdrawal or downgrade, Party A shall, subject to the Rating
Agency
Condition with respect to S&P and Fitch, at its own expense, procure
either (i) a Permitted Transfer or (ii) an Eligible
Guarantee.
|
(ii)
Xxxxx’x
Downgrade.
|
(1)
|
In
the event that a Xxxxx’x Second Trigger Ratings Event occurs and is
continuing, Party A shall, as soon as reasonably practicable
thereafter,
at its own expense and using commercially reasonable efforts,
either (i)
procure a Permitted Transfer or (ii) obtain an Eligible Guarantee.
|
|
(e)
|
Compliance
with Regulation AB.
|
|
(i)
|
Bear
Xxxxxxx agrees and acknowledges that Financial Asset Securities
Corp.
(“Depositor”) is required under Regulation AB under the Securities Act of
1933, as amended (the “Act”), and the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) (“Regulation AB”), to disclose certain
financial information regarding Bear Xxxxxxx or its group of
affiliated
entities, if applicable, depending on the aggregate “significance
percentage” of this Agreement and any other derivative contracts between
Bear Xxxxxxx or its group of affiliated entities, if applicable,
and
Counterparty, as calculated from time to time in accordance with
Item 1115
of Regulation AB.
|
|
(ii)
|
It
shall be a swap/cap disclosure event (“Cap Disclosure Event”) if, on any
Business Day after the date hereof, Depositor requests from Bear
Xxxxxxx
the applicable financial information described in Item 1115 of
Regulation
AB (such request to be based on a reasonable determination by
Depositor,
in good faith, that such information is required under Regulation
AB with
respect to this Transaction) (the “Cap Financial
Disclosure”).
|
|
(iii)
|
Upon
the occurrence of a Cap Disclosure Event, Bear Xxxxxxx, at its
own
expense, shall either (1)(a) (i) provide to Depositor the current
Cap
Financial Disclosure in an XXXXX-compatible format (for example,
such
information may be provided in Microsoft Word® or Microsoft Excel® format
but not in .pdf format) or (ii) provide written consent to Depositor
to
incorporation by reference of such current Cap Financial Disclosure
that
are filed with the Securities and Exchange Commission in the
reports of
the Trust filed pursuant to the Exchange Act, (b) if applicable,
cause its
outside accounting firm to provide its consent to filing or incorporation
by reference of such accounting firm’s report relating to their audits of
such current Cap Financial Disclosure in the Exchange Act Reports
of
Depositor, and (c) provide to Depositor any updated Cap Financial
Disclosure with respect to Bear Xxxxxxx within five days of the
release of
any such updated Swap Financial Disclosure (but in no event more
than 45
days after the end of each of Bear Xxxxxxx’x fiscal quarter for any
quarterly update); (2) secure another entity to replace Bear
Xxxxxxx as
party to this Agreement by way of a Permitted Transfer on terms
substantially similar to this Agreement, which entity (or a guarantor
therefore) satisfies the Rating Agency Condition and which entity
is able
to comply with the requirements of Item 1115 of Regulation AB
and rule
3-10(b) of Regulation S-X, or (3) obtain a guaranty of Bear Xxxxxxx’x
obligations under this Agreement from an affiliate of Bear Xxxxxxx
that is
able to comply with the financial information disclosure requirements
of
Item 1115 of Regulation AB and rule 3-10(b) of Regulation S-X,
and cause
such affiliate to provide Cap Financial Disclosure and any future
Cap
Financial Disclosure, such that disclosure provided in respect
of such
affiliate will satisfy any disclosure requirements applicable
to the Cap
Provider.
|
(iv)
(a)
Bear
Xxxxxxx hereby agrees to indemnify and hold harmless Depositor, the respective
present and former directors, officers, employees and agents of each of
the
foregoing and each person, if any, who controls Depositor within the meaning
of
Section 15 of the Act, or Section 20 of the Exchange Act, from and against
any
and all losses, claims, liabilities, 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 as and when such losses, claims,
liabilities, damages, penalties, fines forfeitures, legal fees or expenses
or
related costs, judgments, or any other costs, fees or expenses are incurred,
insofar as such losses, claims, liabilities, damages, penalties, fines
forfeitures, legal fees or expenses or related costs, judgments, or any
other
costs, fees or expenses (or actions in respect thereof) arise out of or
are
based upon any untrue statement or alleged untrue statement of any material
fact
contained in the Cap Financial Disclosure, or arise out of, or are based
upon,
the omission or alleged omission to state in the Cap Financial Disclosure
any
material fact required to be stated therein or necessary to make the statements
in the Cap Financial Disclosure, as applicable, in light of the circumstances
under which they were made, not misleading, and Bear Xxxxxxx shall reimburse
Depositor, the present and former respective officers, directors, employees
and
agents of each of the foregoing and any such controlling person for any
legal or
other expenses reasonably incurred by it or any of them in connection with
investigating or defending any such losses, claims, liabilities, damages,
penalties, fines, forfeitures, legal fees or expenses or related costs,
judgments, or any other costs, fees or expenses, as and when
incurred.
(b)
If
(i)
Bear Xxxxxxx fails to provide the Cap Financial Disclosure or any required
auditor’s consents to Depositor pursuant to Section 16(iii) hereof (a “Cap
Financial Disclosure Failure”), (ii) as a result of such Cap Financial
Disclosure Failure an Early Termination Date is designated hereunder by
Counterparty and (iii) such Cap Financial Disclosure Failure results in
a
failure by Depositor to file a report required by the Exchange Act, Bear
Xxxxxxx
hereby agrees to reimburse Depositor, the present and former respective
officers, directors, employees and agents of each of the foregoing and
any such
controlling person for any legal or other expenses reasonably incurred
by it or
any of them in connection with the investigation or defense of any inquiry
or
investigation by the Securities and Exchange Commission resulting from
such Cap
Financial Disclosure Failure; provided that in no event shall Bear Xxxxxxx
be
required to indemnify Depositor, the present and former respective officers,
directors, employees and agent of each of the foregoing and any such controlling
person for any lost profit or damages with respect to this Transaction
or any
other transaction (whether such lost profit or damages is characterized
as
indirect, punitive, consequential, special damages or otherwise), even
if at the
time of such failure Bear Xxxxxxx is aware of the possibility of such lost
profit or damages.
|
(v)
|
Depositor
shall be an express third party beneficiary of this Agreement
as if a
party hereto to the extent of Depositor’s rights explicitly specified in
this Part 5(e).
|
|
(f)
|
Transfers.
|
(i)
Section
7
is hereby amended to read in its entirety as follows:
“Except
with respect to a Permitted Transfer pursuant to Section 6(b)(ii), Part
5(d),
Part 5(b)(v) or the succeeding sentence, neither Party A nor Party B is
permitted to assign, novate or transfer (whether by way of security or
otherwise) as a whole or in part any of its rights, obligations or interests
under the Agreement or any Transaction unless (a) the prior written consent
of
the other party is obtained and (b) the Rating Agency Condition has been
satisfied with respect to S&P and Fitch. At any time at which no Relevant
Entity has credit ratings at least equal to the Approved Ratings Threshold,
Party A may make a Permitted Transfer.”
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains
an offer that
will become legally binding upon acceptance by Party B) to be
the
transferee pursuant to a Permitted Transfer, Party B shall, at
Party A’s
written request and at Party A’s expense, execute such documentation
provided to it as is reasonably deemed necessary by Party A to
effect such
transfer.
|
|
(g)
|
Non-Recourse.
Party A acknowledges and agree that, notwithstanding any provision
in this
Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from
the Cap Trust
and the proceeds thereof, in accordance with the priority of
payments and
other terms of the Pooling and Servicing Agreement and that Party
A will
not have any recourse to any of the directors, officers, agents,
employees, shareholders or affiliates of Party B with respect
to any
claims, losses, damages, liabilities, indemnities or other obligations
in
connection with any transactions contemplated hereby. In the
event that
the Cap Trust and the proceeds thereof, should be insufficient
to satisfy
all claims outstanding and following the realization of the Cap
Trust and
the proceeds thereof, any claims against or obligations of Party
B under
this Agreement or any other confirmation thereunder still outstanding
shall be extinguished and thereafter not revive. The Cap Trustee
shall not
have liability for any failure or delay in making a payment hereunder
to
Party A due to any failure or delay in receiving amounts in the
Cap Trust
from the Trust created pursuant to the Pooling and Servicing
Agreement.
This provision will survive the termination of this
Agreement.
|
|
(h)
|
Timing
of Payments
by Party B upon Early Termination.
Notwithstanding anything to the contrary in Section 6(d)(ii),
to the
extent that all or a portion (in either case, the “Unfunded Amount”) of
any amount that is calculated as being due in respect of any
Early
Termination Date under Section 6(e) from Party B to Party A will
be paid
by Party B from amounts other than any upfront payment paid to
Party B by
an Eligible Replacement that has entered a Replacement Transaction
with
Party B, then such Unfunded Amount shall be due on the next subsequent
Distribution Date following the date on which the payment would
have been
payable as determined in accordance with Section 6(d)(ii), and
on any
subsequent Distribution Dates until paid in full (or if such
Early
Termination Date is the final Distribution Date, on such final
Distribution Date); provided, however, that if the date on which
the
payment would have been payable as determined in accordance with
Section
6(d)(ii) is a Distribution Date, such payment will be payable
on such
Distribution Date.
|
|
(i)
|
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Swap Rating Agency has been given prior written notice of
such
designation or transfer.
|
|
(j)
|
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6 or
Part
1(f)(i)(D) hereof, and notwithstanding any other provision of
this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off,
net, recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date
and
determined pursuant to this Section will be subject to any
Set-off.”.
|
|
(k)
|
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Swap Rating
Agencies
has been provided prior written notice of the same and such amendment
satisfies the Rating Agency Condition with respect to S&P and
Fitch.
|
|
(l)
|
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving
of notice or
passage of time or both would constitute) an Event of Default
or
Termination Event with respect to such party, promptly to give
the other
Party and to each Swap Rating Agency notice of such event or
condition;
provided that failure to provide notice of such event or condition
pursuant to this Part 5(l) shall not constitute an Event of Default
or a
Termination Event.
|
(m)
Proceedings.
No
Relevant Entity shall institute against, or cause any other person to institute
against, or join any other person in instituting against Party B, the Cap
Trust,
or the trust formed pursuant to the Pooling and Servicing Agreement, in
any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any federal or state bankruptcy or similar law
for a
period of one year (or, if longer, the applicable preference period) and
one day
following payment in full of the Certificates and any Notes. This provision
will
survive the termination of this Agreement.
|
(n)
|
Cap
Trustee Liability Limitations.
It
is expressly understood and agreed by the parties hereto that
(a) this
Agreement is executed by Xxxxx Fargo Bank, N.A. (“Xxxxx”) not in its
individual capacity, but solely as Cap Trustee under the Pooling
and
Servicing Agreement in the exercise of the powers and authority
conferred
and invested in it thereunder; (b) Xxxxx has been directed pursuant
to the
Pooling and Servicing Agreement to enter into this Agreement
and to
perform its obligations hereunder; (c) each of the representations,
undertakings and agreements herein made on behalf of the Cap
Trust is made
and intended not as personal representations of Xxxxx but is
made and
intended for the purpose of binding only the Cap Trust; and (d)
under no
circumstances shall Xxxxx
in its individual capacity be personally liable for any payments
hereunder
or for the breach or failure of any obligation, representation,
warranty
or covenant made or undertaken under this
Agreement.
|
|
(o)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) in any respect,
the
remaining terms, provisions, covenants, and conditions hereof
shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long
as this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement
will not
substantially impair the respective benefits or expectations
of the
parties; provided, however, that this severability provision
shall not be
applicable if any provision of Section 2, 5, 6, or 13 (or any
definition
or provision in Section 14 to the extent it relates to, or is
used in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace
any
invalid or unenforceable term, provision, covenant or condition with a
valid or
enforceable term, provision, covenant or condition, the economic effect
of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(p)
|
Agent
for Party B. Party
A acknowledges that Party B has appointed the Cap Trustee and
the Trust
Administrator as its agents under the Pooling and Servicing Agreement
and
the Cap Allocation Agreement to carry out certain functions on
behalf of
Party B, and that the Cap Trustee and the Trust Administrator
shall be
entitled to give notices and to perform and satisfy the obligations
of
Party B hereunder on behalf of Party
B.
|
|
(q)
|
Limitation
on Events of Default.
Notwithstanding the provisions of Sections 5 and 6, if at any
time and so
long as Party B has satisfied in full all its payment obligations
under
Section 2(a)(i) and has at the time no future payment obligations,
whether
absolute or contingent, under such Section, then unless Party
A is
required pursuant to appropriate proceedings to return to Party
B or
otherwise returns to Party B upon demand of Party B any portion
of any
such payment, (a) the occurrence of an event described in Section
5(a)
with respect to Party B shall not constitute an Event of Default
or
Potential Event of Default with respect to Party B as Defaulting
Party and
(b) Party A shall be entitled to designate an Early Termination
Date
pursuant to Section 6 only as a result of the occurrence of a
Termination
Event set forth in either Section 5(b)(i) or 5(b)(ii) with respect
to
Party A as the Affected Party, or Section 5(b)(iii) with respect
to Party
A as the Burdened Party. For purposes of the Transaction to which
this
Agreement relates, Party B’s only obligation under Section 2(a)(i) is to
pay the Fixed Amount on the Fixed Amount Payer Payment
Date.
|
|
(r)
|
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at
any time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates, waives any further notice of such monitoring
or
recording, and agrees to notify such personnel of such monitoring
or
recording.
|
|
(s)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in
respect of
any suit, action or proceeding relating to this Agreement or
any Credit
Support Document.
|
|
(t)
|
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency - Crossborder) as published and copyrighted in
1992 by the
International Swaps and Derivatives Association,
Inc.
|
|
(u)
|
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party
B of other
payment instructions, any and all amounts payable by Party A
to Party B
under this Agreement shall be paid to the account specified in
Item 4 of
this Confirmation, below.
|
|
(v)
|
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement that it is entering into the Agreement and the
Transaction
as principal and not as agent of any person. The Cap Trustee
represents to
Party A on the date on which Party
B enters
into this Agreement that the Cap Trustee is executing the Agreement
not in
its individual capacity, but solely as the Cap Trustee on behalf
of the
Cap Trust.
|
|
(w)
|
Substantial
financial transactions.
Each party hereto is hereby advised and acknowledges as of the
date hereof
that the other party has engaged in (or refrained from engaging
in)
substantial financial transactions and has taken (or refrained
from
taking) other material actions in reliance upon the entry by
the parties
into the Transaction being entered into on the terms and conditions
set
forth herein and in the Pooling and Servicing Agreement relating
to such
Transaction, as applicable. This paragraph shall be deemed repeated
on the
trade date of each Transaction.
|
|
(x)
|
[Reserved].
|
|
(y)
|
[Reserved].
|
(z)
Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold, the Moody’s First Trigger
Ratings Threshold, and the Fitch Approved Ratings Threshold.
“Approved
Replacement” means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b), (c) and (d)of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future payment
obligations and obligations to post collateral of Party A or an Eligible
Replacement to Party B under this Agreement that is provided by an Eligible
Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee are subject
to
the Rating Agency Condition with respect to S&P and Fitch.
“Eligible
Guarantor” means
an
entity that (A) has credit ratings from S&P at least equal to the S&P
Approved Ratings Threshold and from Fitch at least equal to the Fitch Approved
Ratings Threshold and (B) has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold, provided, for the avoidance of doubt,
that an Eligible Guarantee of an Eligible Guarantor with credit ratings
below
the Moody’s First Trigger Ratings Threshold will not cause a Collateral Event
(as defined in the Credit Support Annex) not to occur or continue with
respect
to Xxxxx’x.
“Eligible
Replacement”
means an
entity (A) (i) (a) that has credit ratings from S&P at least equal to the
S&P Approved Ratings Threshold and from Fitch at least equal to the Fitch
Approved Ratings Threshold, and (b) has credit ratings from Moody’s at least
equal to the Moody’s Second Trigger Ratings Threshold, provided, for the
avoidance of doubt, that an Eligible Replacement with credit ratings below
the
Moody’s First Trigger Ratings Threshold will not cause a Collateral Event (as
defined in the Credit Support Annex) not to occur or continue with respect
to
Moody’s, or (ii) the present and future obligations (for the avoidance of doubt,
not limited to payment obligations) of which entity to Party B under this
Agreement are guaranteed pursuant to an Eligible Guarantee and (B) that
has
executed an Item 1115 Agreement with Depositor and Sponsor.
“Estimated
Swap Termination Payment”
means,
with respect to an Early Termination Date, an amount determined by Party
A in
good faith and in a commercially reasonable manner as the maximum payment
that
could be owed by Party B to Party A in respect of such Early Termination
Date
pursuant to Section 6(e) of the ISDA Master Agreement, taking into account
then
current market conditions.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or to
Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such
Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as
the
counterparty to this Agreement or enter a Replacement Transaction that
will
become legally binding upon such Eligible Replacement upon acceptance by
Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Fitch”
means
Fitch Ratings Ltd., or any successor thereto.
“Fitch
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
Fitch of “A” and a short-term unsecured and unsubordinated debt rating from
Fitch of “F1”.
“Fitch
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
Fitch of “BBB-”.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Event”
means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s First Trigger Ratings Threshold.
“Moody’s
First Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Ratings Event”
means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer” means
a
transfer by novation by Party A pursuant to Section 6(b)(ii), Part 5(d),
Part
5(b)(v) Part 5(e), or the second sentence of Section 7 (as amended herein)
to a
transferee (the “Transferee”)
of all,
but not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with
respect to which transfer each of the following conditions is
satisfied:
(a) the
Transferee is an Eligible Replacement; (b) Party A and the Transferee are
both
“dealers in notional principal contracts” within the meaning of Treasury
regulations section 1.1001-4 (in each case as certified by such entity);
(c) as
of the date of such transfer the Transferee would not be required to withhold
or
deduct on account of Tax from any payments under this Agreement or would
be
required to gross up for such Tax under Section 2(d)(i)(4); (d) an Event
of
Default or Termination Event would not occur as a result of such transfer;
(e)
pursuant to a written instrument (the “Transfer
Agreement”),
the
Transferee acquires and assumes all rights and obligations of Party A under
the
Agreement and the relevant Transaction; (f) Party B shall have determined,
in
its sole discretion, acting in a commercially reasonable manner, that such
Transfer Agreement is effective to transfer to the Transferee all, but
not less
than all, of Party A’s rights and obligations under the Agreement and all
relevant Transactions; (g) Party A will be responsible for any costs or
expenses
incurred in connection with such transfer (including any replacement cost
of
entering into a replacement transaction); (h) either (A) Moody’s has been given
prior written notice of such transfer and the Rating Agency Condition is
satisfied with respect to S&P and Fitch or (B) each Swap Rating Agency has
been given prior written notice of such transfer and such transfer is in
connection with the assignment and assumption of this Agreement without
modification of its terms, other than party names, dates relevant to the
effective date of such transfer, tax representations (provided that the
representations in Part 2(a)(i) are not modified) and any other representations
regarding the status of the substitute counterparty of the type included
in Part
5(b)(iv), Part 5(v)(i)(2) or Part 5(v)(ii), notice information and account
details; and (i) such transfer otherwise complies with the terms of the
Pooling
and Servicing Agreement.
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder
and
each Swap Rating Agency specified in connection with such proposed act
or
omission, that the party acting or failing to act must consult with each
of the
specified Swap Rating Agencies and receive from each such Swap Rating Agency
a
prior written confirmation that the proposed action or inaction would not
cause
a downgrade or withdrawal of the then-current rating of any Certificates
or
Notes.
“Relevant
Entity” means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are
not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the Required
Ratings Threshold. For purposes of determining whether a Required Ratings
Downgrade Event has occurred, each Relevant Entity shall provide its credit
ratings to Party B in writing, upon request of Party B.
“Required
Ratings Threshold” means
each of the S&P Required Ratings Threshold, the Moody’s Second Trigger
Ratings Threshold and the Fitch Required Ratings Threshold.
“S&P/Fitch”
means
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto and the Fitch Approved Ratings Threshold.
“S&P
Approved Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the S&P
Approved Ratings Threshold.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating from S&P of
“A+”.
“S&P/Fitch
Required Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the S&P
Required Ratings Threshold and the Fitch Approved Ratings
Threshold.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
or
counterparty rating from S&P of “BBB-”.
“Swap
Rating Agencies”
means,
with respect to any date of determination, each of S&P, Xxxxx’x and Fitch,
to the extent that each such rating agency is then providing a rating for
any of
the Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series
2007-1
(the “Certificates”) or any notes backed by the Certificates (the
“Notes”).
[Remainder
of this page intentionally left blank.]
4.
Account
Details and Settlement Information:
|
Payments
to Party A:
|
|
Citibank,
N.A., New York
|
|
ABA
Number: 000-0000-00, for the account of Bear, Xxxxxxx Securities
Corp.
|
|
Account
Number: 0925-3186, for further credit to Bear Xxxxxxx Financial
Products
Inc.
|
|
Sub-account
Number: 102-04654-1-3
|
|
Attention:
Derivatives Department
|
|
Payments
to Party B:
|
|
Xxxxx
Fargo Bank, NA
|
|
San
Francisco, CA
|
|
ABA#
000-000-000
|
|
Acct#
0000000000
|
|
Acct
Name: SAS Clearing
|
|
FFC:
50992401
|
NEITHER
THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF THE
BEAR
XXXXXXX COMPANIES INC. OTHER THAN PARTY A IS AN OBLIGOR OR A CREDIT SUPPORT
PROVIDER ON THIS AGREEMENT.
This
Agreement may be executed in several counterparts, each of which shall
be deemed
an original but all of which together shall constitute one and the same
instrument.
Party
B
hereby agrees to check this Confirmation and to confirm that the foregoing
correctly sets forth the terms of the Transaction by signing in the space
provided below and returning to Party A a facsimile of the fully-executed
Confirmation to 000-000-0000. For inquiries regarding U.S. Transactions,
please
contact Derivatives Documentation by telephone at 000-000-0000. For all
other
inquiries please contact Derivatives Documentation by telephone at
000-0-000-0000. Originals will be provided for your execution upon your
request.
SCHEDULE
I
(where
for the purposes of (i) determining Floating Amounts, all such dates subject
to
adjustment in
accordance
with the Business Day Convention and (ii) determining Fixed Amounts, all
such
dates subject to
No
Adjustment.)
|
From
and including
|
To
but excluding
|
Notional
Amount
(USD)
|
||
|
Effective
Date
|
12/25/07
|
765.95
|
||
|
12/25/07
|
01/25/08
|
723.72
|
||
|
01/25/08
|
02/25/08
|
1,213.58
|
||
|
02/25/08
|
03/25/08
|
2,559.29
|
||
|
03/25/08
|
04/25/08
|
2,319.58
|
||
|
04/25/08
|
05/25/08
|
2,817.52
|
||
|
05/25/08
|
06/25/08
|
2,568.97
|
||
|
06/25/08
|
07/25/08
|
3,850.16
|
||
|
07/25/08
|
08/25/08
|
6,350.85
|
||
|
08/25/08
|
09/25/08
|
5,808.04
|
||
|
09/25/08
|
10/25/08
|
7,442.23
|
||
|
10/25/08
|
11/25/08
|
7,445.26
|
||
|
11/25/08
|
12/25/08
|
10,429.37
|
||
|
12/25/08
|
01/25/09
|
179,827.84
|
||
|
01/25/09
|
02/25/09
|
323,235.53
|
||
|
02/25/09
|
03/25/09
|
289,799.11
|
||
|
03/25/09
|
04/25/09
|
260,636.92
|
||
|
04/25/09
|
05/25/09
|
271,102.82
|
||
|
05/25/09
|
06/25/09
|
291,329.69
|
||
|
06/25/09
|
07/25/09
|
287,883.73
|
||
|
07/25/09
|
08/25/09
|
275,546.40
|
||
|
08/25/09
|
09/25/09
|
262,571.55
|
||
|
09/25/09
|
10/25/09
|
250,376.49
|
||
|
10/25/09
|
11/25/09
|
238,628.32
|
||
|
11/25/09
|
12/25/09
|
227,694.66
|
||
|
12/25/09
|
01/25/10
|
229,689.08
|
||
|
01/25/10
|
02/25/10
|
231,318.90
|
||
|
02/25/10
|
03/25/10
|
220,881.24
|
||
|
03/25/10
|
04/25/10
|
210,479.52
|
||
|
04/25/10
|
05/25/10
|
200,567.14
|
||
|
05/25/10
|
06/25/10
|
191,121.11
|
||
|
06/25/10
|
07/25/10
|
182,119.49
|
||
|
07/25/10
|
08/25/10
|
173,541.39
|
||
|
08/25/10
|
09/25/10
|
165,366.91
|
||
|
09/25/10
|
10/25/10
|
157,577.08
|
||
|
10/25/10
|
11/25/10
|
150,153.80
|
||
|
11/25/10
|
12/25/10
|
143,079.85
|
||
|
12/25/10
|
01/25/11
|
136,402.94
|
||
|
01/25/11
|
02/25/11
|
130,010.46
|
||
|
02/25/11
|
03/25/11
|
123,990.39
|
||
|
03/25/11
|
04/25/11
|
118,204.72
|
||
|
04/25/11
|
05/25/11
|
115,954.28
|
||
|
05/25/11
|
06/25/11
|
116,415.06
|
||
|
06/25/11
|
07/25/11
|
112,031.65
|
||
|
07/25/11
|
08/25/11
|
106,793.97
|
||
|
08/25/11
|
09/25/11
|
101,739.97
|
||
|
09/25/11
|
10/25/11
|
96,924.73
|
||
|
10/25/11
|
11/25/11
|
92,336.94
|
||
|
11/25/11
|
12/25/11
|
87,965.92
|
||
|
12/25/11
|
01/25/12
|
86,641.30
|
||
|
01/25/12
|
Termination
Date
|
84,683.02
|
Annex
A
Paragraph
13 of the Credit Support Annex
ANNEX
A
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of February 28, 2007 between
Bear
Xxxxxxx Financial Products Inc. (hereinafter referred to as “Party
A”
or
“Pledgor”)
and
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely as Cap Trustee
on
behalf of the Cap Trust with
respect
to the Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series
2007-1 (hereinafter referred to
as
“Party
B”
or
“Secured
Party”)
For
the
avoidance of doubt, and notwithstanding anything to the contrary that may
be
contained in the Agreement, this Credit Support Annex shall relate solely
to the
Transaction documented in the Confirmation dated February 28, 2007, between
Party A and Party B, Reference Number FXNEC9258.
Paragraph
13. Elections and Variables.
| (a) |
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
| (b) |
Credit
Support Obligations.
|
| (i) |
Delivery
Amount, Return Amount and Credit Support
Amount.
|
| (A) |
“Delivery
Amount”
has the meaning specified in Paragraph 3(a) as amended (I) by
deleting the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Value as of that Valuation Date of all Posted
Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
|
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest
of
|
(1)
|
the
amount by which (a) the S&P/Fitch Credit Support Amount for such
Valuation Date exceeds (b) the S&P/Fitch Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party,
|
|
(2)
|
the
amount by which (a) the Xxxxx’x First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Xxxxx’x First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured
Party,
and
|
|
(3)
|
the
amount by which (a) the Xxxxx’x Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Xxxxx’x Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the
Secured
Party.
|
| (B) |
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by deleting
in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
|
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the least
of
|
(1)
|
the
amount by which (a) the S&P/Fitch Value as of such Valuation Date of
all Posted Credit Support held by the Secured Party exceeds (b)
the
S&P/Fitch Credit Support Amount for such Valuation Date,
|
|
(2)
|
the
amount by which (a) the Xxxxx’x First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Xxxxx’x First Trigger Credit Support Amount for such Valuation Date,
and
|
|
(3)
|
the
amount by which (a) the Xxxxx’x Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Xxxxx’x Second Trigger Credit Support Amount for such Valuation
Date.
|
| (C) |
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery Amount
or Return
Amount for any Valuation Date, reference shall be made to the
S&P/Fitch Credit Support Amount, the Xxxxx’x First Trigger Credit
Support Amount, or the Xxxxx’x Second Trigger Credit Support Amount, in
each case for such Valuation Date, as provided in Paragraphs
13(b)(i)(A)
and 13(b)(i)(B), above.
|
| (ii) |
Eligible
Collateral.
|
The
items
set forth on the schedule of Eligible Collateral attached as Schedule A
hereto
will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral described in (D) and (E)
of
column one of the Collateral Schedule to be denominated in USD).
| (iii) |
Other
Eligible Support.
|
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
| (iv) |
Threshold.
|
| (A) |
“Independent
Amount”
means zero with respect to Party A and Party
B.
|
| (B) |
“Threshold”
means, with respect to Party A and any Valuation Date, zero if
(i) a
Collateral Event has occurred and has been continuing (x) for
at least 30
days or (y) since this Annex was executed or (ii) a Required
Ratings
Downgrade Event has occurred and is continuing; otherwise,
infinity.
|
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
| (C) |
“Minimum
Transfer Amount” means
USD 100,000 with respect to Party A and Party B; provided, however,
that
if the aggregate Certificate Principal Balance of the Certificates
and the
aggregate principal balance of the Notes rated by S&P is at the time
of any transfer less than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000.
|
| (D) |
Rounding:
The Delivery Amount will be rounded up to the nearest integral
multiple of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 10,000.
|
| (c) |
Valuation
and Timing.
|
| (i) |
“Valuation
Agent”
means Party A.
|
| (ii) |
“Valuation
Date” means
each Local Business Day on which any of the S&P/Fitch Credit Support
Amount, the Xxxxx’x First Trigger Credit Support Amount or the Xxxxx’x
Second Trigger Credit Support Amount is greater than
zero.
|
| (iii) |
“Valuation
Time” means
the close of business in the city of the Valuation Agent on the
Local
Business Day immediately preceding the Valuation Date or date
of
calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same date. The Valuation Agent
will
notify each party (or the other party, if the Valuation Agent
is a party)
of its calculations not later than the Notification Time on the
applicable
Valuation Date (or in the case of Paragraph 6(d), the Local Business
Day
following the day on which such relevant calculations are
performed).”
|
| (iv) |
“Notification
Time” means
11:00 a.m., New York time, on a Local Business Day.
|
| (v) |
External
Calculations.
At
any time at which Party A (or, to the extent applicable, its
Credit
Support Provider) does not have a long-term unsubordinated and
unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall (at
its own expense) obtain external calculations of Party B’s Exposure from
at least two Reference Market-makers on the last Local Business
Day of
each calendar month. Any determination of the S&P Credit Support
Amount shall be based on the greatest of Party B’s Exposure determined by
the Valuation Agent and such Reference Market-makers. Such external
calculation may not be obtained from the same Reference Market-maker
more
than four times in any 12-month
period.
|
| (vi) |
Notice
to S&P.
At
any time at which Party A (or, to the extent applicable, its
Credit
Support Provider) does not have a long-term unsubordinated and
unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall
provide to S&P not later than the Notification Time on the Local
Business Day following each Valuation Date its calculations of
Party B’s
Exposure and the S&P Value of any Eligible Credit Support or Posted
Credit Support for that Valuation Date. The Valuation Agent shall
also
provide to S&P any external marks of Party B’s
Exposure.
|
| (d) |
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party
if the
Termination Event occurs with respect to that party): With respect
to
Party A and Party B: None.
|
| (e) |
Substitution.
|
| (i) |
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
|
| (ii) |
Consent.
If
specified here as applicable, then the Pledgor must obtain the
Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
|
| (f) |
Dispute
Resolution.
|
| (i) |
“Resolution
Time”
means 1:00 p.m. New York time on the Local Business Day following
the date
on which the notice of the dispute is given under Paragraph
5.
|
| (ii) |
Value.
Notwithstanding anything to the contrary in Paragraph 12, for
the purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P/Fitch Value, Xxxxx’x First
Trigger Value, and Xxxxx’x Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
|
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
product of (1)(x) the bid-side quotation at the Valuation Time for such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on a national
securities exchange, the arithmetic mean of the bid-side quotations for
such
securities quoted at the Valuation Time by any three principal market makers
for
such securities selected by the Valuation Agent, provided that if only
two
bid-side quotations are obtained, then the arithmetic mean of such two
bid-side
quotations will be used, and if only one bid-side quotation is obtained,
such
quotation shall be used, or (z) if no such bid price is listed or quoted
for
such date, the bid price listed or quoted (as the case may be) at the Valuation
Time for the day next preceding such date on which such prices were available
and (2) the applicable Valuation Percentage for such Eligible
Collateral.
| (iii) |
Alternative.
The provisions of Paragraph 5 will
apply.
|
| (g) |
Holding
and Using Posted
Collateral.
|
| (i) |
Eligibility
to Hold Posted Collateral; Custodians. Party
B (or its Custodian) will be entitled to hold Posted Collateral
pursuant
to Paragraph 6(b), provided that the following conditions applicable
to it
are satisfied:
|
|
(1)
|
it
is not a Defaulting Party.
|
|
(2)
|
Posted
Collateral consisting of Cash or certificated securities that
cannot be
paid or delivered by book-entry may be held only in any state
of the
United States which has adopted the Uniform Commercial
Code.
|
|
(3)
|
in
the case of any Custodian for Party B, such Custodian (or, to
the extent
applicable, its parent company or credit support provider) shall
then have
a short-term unsecured and unsubordinated debt rating from S&P of at
least “A-1”.
|
Initially,
the Custodian
for
Party B is: Trust
Administrator
| (ii) |
Use
of Posted Collateral.
The provisions of Paragraph 6(c) will not apply to Party B, and
Party B
shall not have any right to use Posted Collateral or take any
action
specified in such Paragraph 6(c).
|
| (h) |
Distributions
and Interest Amount.
|
| (i) |
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral
in the form
of Cash that is held by Party B or its Custodian. Posted Collateral
in the
form of Cash shall be invested in such overnight (or redeemable
within two
Local Business Days of demand) Permitted Investments rated at
least (x)
AAAm or AAAm-G by S&P and (y) Prime-1 by Xxxxx’x or Aaa by Xxxxx’x, as
directed by Party A. Gains and losses incurred in respect of
any
investment of Posted Collateral in the form of Cash in Permitted
Investments
as
directed by Party A shall be for the account of Party
A.
|
| (ii) |
Amendment
of Paragraph 6(d)(i) - Distributions.
Clause (d)(i) of Paragraph 6 shall be amended and restated to
read in its
entirety as follows:
|
“(i)
Distributions. If Party B receives Distributions on a Local Business Day,
it
will not Transfer such Distributions to Party A but, rather, such Distributions
will constitute Posted Collateral and will be subject to the security interest
granted under Paragraph 2.”
| (iii) |
Amendment
of Paragraph 6(d)(ii) - Interest Amount.
Clause (d)(ii) of Paragraph 6 shall be amended and restated to
read in its
entirety as follows:
|
“(ii)
Interest
Amount.
In lieu
of any interest, dividends or other amounts paid with respect to Posted
Collateral in the form of Cash (all of which may be retained by the Secured
Party), the Secured Party will Transfer to the Pledgor on the 20th day
of each
calendar month (or if such day is not a Local Business Day, the next Local
Business Day) the Interest Amount. Any Interest Amount or portion thereof
not
Transferred pursuant to this Paragraph will constitute Posted Collateral
in the
form of Cash and will be subject to the security interest granted under
Paragraph 2. For purposes of calculating the Interest Amount the amount
of
interest calculated for each day of the interest period shall be compounded
monthly.” Secured Party shall not be obligated to transfer any Interest Amount
unless and until it has received such amount.
| (i) |
Additional
Representation(s).
There are no additional representations by either
party.
|
| (j) |
Other
Eligible Support and Other Posted Support.
|
| (i) |
“Value”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (ii) |
“Transfer”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (k) |
Demands
and Notices.All
demands, specifications and notices under this Annex will be made pursuant
to the Notices Section of this Agreement, except that any demand,
specification or notice shall be given to or made at the following
addresses, or at such other address as the relevant party may
from time to
time designate by giving notice (in accordance with the terms
of this
paragraph) to the other party:
|
If
to
Party A, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B’s Custodian: at the address designated in writing from time to
time.
| (l) |
Address
for Transfers.
Each Transfer hereunder shall be made to the address specified
below or to
an address specified in writing from time to time by the party
to which
such Transfer will be made.
|
Party
A
account details for holding collateral:
Citibank,
N.A., New York
ABA
Number: 000-0000-00, for the account of Bear, Xxxxxxx Securities
Corp.
Account
Number: 0925-3186, for further credit to Bear Xxxxxxx Financial Products
Inc.
Sub-account
Number: 102-04654-1-3
Attention:
Derivatives Department
Party
B’s
Custodian account details for holding collateral:
Xxxxx
Fargo Bank, NA
San
Francisco, CA
ABA#
000-000-000
Acct#
0000000000
Acct
Name: SAS Clearing
FFC:
50992406
| (m) |
Other
Provisions.
|
| (i) |
Collateral
Account.
Party B shall open and maintain a segregated account, which shall
be an
Eligible Account, and hold, record and identify all Posted Collateral
in
such segregated account.
|
| (ii) |
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything
to the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant in
Paragraph 2,
the acknowledgement in the final sentence of Paragraph 8(a) and
the
representations in Paragraph 9.
|
| (iii) |
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P/Fitch Value, Xxxxx’x First Trigger
Value, Xxxxx’x Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended
by (A) deleting the words “a Value” and inserting in lieu thereof “an
S&P/Fitch Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second
Trigger Value” and (B) deleting the words “the Value” and inserting in
lieu thereof “S&P/Fitch Value, Xxxxx’x First Trigger Value, and
Xxxxx’x Second Trigger Value”. Paragraph 5 (flush language) is hereby
amended by deleting the word “Value” and inserting in lieu thereof
“S&P/Fitch Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second
Trigger Value”. Paragraph 5(i) (flush language) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P/Fitch
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value”.
Paragraph 5(i)(C) is hereby amended by deleting the word “the Value, if”
and inserting in lieu thereof “any one or more of the S&P/Fitch Value,
Xxxxx’x First Trigger Value, or Xxxxx’x Second Trigger Value, as may be”.
Paragraph 5(ii) is hereby amended by (1) deleting the first instance
of
the words “the Value” and inserting in lieu thereof “any one or more of
the S&P/Fitch Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second
Trigger Value” and (2) deleting the second instance of the words “the
Value” and inserting in lieu thereof “such disputed S&P/Fitch Value,
Xxxxx’x First Trigger Value, or Xxxxx’x Second Trigger Value”. Each of
Paragraph 8(b)(iv)(B) and Paragraph 11(a) is hereby amended by
deleting
the word “Value” and inserting in lieu thereof “least of the S&P/Fitch
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value”.
|
| (iv) |
Form
of Annex. Party
A and Party B hereby agree that the text of Paragraphs 1 through
12,
inclusive, of this Annex is intended to be the printed form of
ISDA Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to New
York Law
Only version) as
published and copyrighted in 1994 by the International Swaps
and
Derivatives Association, Inc.
|
| (v) |
Events
of Default.
Clause (iii) of Paragraph 7 shall not apply to Party
B.
|
| (vi) |
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the
Pledgor will
be responsible for, and will reimburse the Secured Party for,
all transfer
and other taxes and other costs involved in any Transfer of Eligible
Collateral.
|
| (vii) |
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately
after “the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
|
(ix)
Additional
Definitions.
As used
in this Annex:
“Collateral
Event” means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“DV01”
means,
with respect to a Transaction and any date of determination, the estimated
change in the Secured Party’s Transaction Exposure with respect to such
Transaction that would result from a one basis point change in the relevant
swap
curve on such date, as determined by the Valuation Agent in good faith
and in a
commercially reasonable manner. The Valuation Agent shall, upon request
of Party
B, provide to Party B a statement showing in reasonable detail such
calculation.
“Exposure”
has the
meaning specified in Paragraph 12, except that after the word “Agreement” the
words “(assuming, for this purpose only, that Part 1(f) of the Schedule is
deleted)” shall be inserted.
“Local
Business Day”
means,
for purposes of this Annex: any day on which (A) commercial banks are open
for
business (including dealings in foreign exchange and foreign currency deposits)
in New York and the location of Party A, Party B and any Custodian, and
(B) in
relation to a Transfer of Eligible Collateral, any day on which the clearance
system agreed between the parties for the delivery of Eligible Collateral
is
open for acceptance and execution of settlement instructions (or in the
case of
a Transfer of Cash or other Eligible Collateral for which delivery is
contemplated by other means a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign deposits)
in New
York and the location of Party A, Party B and any Custodian.
“Xxxxx’x
First Trigger Credit Support Amount” means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (I) a Xxxxx’x First Trigger Ratings Event has
occurred and has been continuing (x) for at least 30 Local Business
Days
or (y) since this Annex was executed and (II) it is not the case
that a
Xxxxx’x Second Trigger Ratings Event has occurred and been continuing
for
at least 30 Local Business Days, an amount equal to the greater
of (a)
zero and (b) the sum of (i) the Secured Party’s Exposure for such
Valuation Date and (ii) the sum, for each Transaction to which
this Annex
relates, of the lesser of (x) the product of the Xxxxx’x First Trigger
DV01 Multiplier and DV01 for such Transaction and such Valuation
Date and
(y) the product of (i) Xxxxx’x
First Trigger Notional Amount Multiplier, (ii) Scale Factor (as
defined in
the related confirmation) for such Transaction, and (iii)
the Notional Amount for such Transaction for the Calculation
Period for
such Transaction (each as defined in the related Confirmation)
which
includes such Valuation Date, or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A such Valuation Date.
“Xxxxx’x
First Trigger DV01 Multiplier”
means
15.
“Xxxxx’x
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Xxxxx’x
First Trigger Notional Amount Multiplier”
means
2%.
“Xxxxx’x
Second Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which it is the case that a Xxxxx’x Second Trigger
Ratings Event has occurred and been continuing for at least 30
Local
Business Days, an amount equal to the greatest of (a) zero, (b)
the
aggregate amount of the next payment due to be paid by Party
A under each
Transaction to which this Annex relates, and (c) the sum of (x)
the
Secured Party’s Exposure for such Valuation Date and (y) the sum, for each
Transaction to which this Annex relates,
of:
|
| (1) |
if
such Transaction is not a Transaction-Specific Hedge, the lesser
of (i)
the product of the Xxxxx’x Second Trigger DV01 Multiplier and DV01 for
such Transaction and such Valuation Date and (ii) the product
of (1) the
Xxxxx’x Second Trigger Notional Amount Multiplier, (2) Scale Factor
(as
defined in the related confirmation) for such Transaction, and
(3) the
Notional Amount for such Transaction for the Calculation Period
for such
Transaction (each as defined in the related Confirmation) which
includes
such Valuation Date];
or
|
| (2) |
if
such Transaction is a Transaction-Specific Hedge, the lesser
of (i) the
product of the Xxxxx’x Second Trigger Transaction-Specific Hedge DV01
Multiplier and DV01 for such Transaction and such Valuation Date
and (ii)
the product of (1) the Xxxxx’x Second Trigger Transaction-Specific Hedge
Notional Amount Multiplier, (2) Scale Factor (as defined in the
related
confirmation) for such Transaction and (3) the Notional Amount
for such
Transaction for the Calculation Period for such Transaction (each
as
defined in the related Confirmation) which includes such Valuation
Date;
or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II) the
Threshold for Party A for such Valuation Date.
“Xxxxx’x
Second Trigger DV01 Multiplier”
means
50.
“Xxxxx’x
Second Trigger Notional Amount Multiplier”
means
8%.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge DV01
Multiplier”
means
65.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier”
means
10%.
“Xxxxx’x
Second Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Remaining
Weighted Average Maturity” means,
with respect to a Transaction, the expected weighted average maturity for
such
Transaction as determined by the Valuation Agent.
“S&P/Fitch
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (i) an S&P/Fitch Approved Ratings
Downgrade Event has occurred and been continuing for at least
30 days or
(ii) a S&P/Fitch Required Ratings Downgrade Event has occurred and is
continuing, an amount equal to the sum of (1) 100.0% of the Secured
Party’s Exposure for such Valuation Date and (2) the sum, for each
Transaction to which this Annex relates, of the product of (i)
the
Volatility Buffer for such Transaction, (ii) Scale Factor (as
defined in
the related confirmation) for such Transaction, and (iii) the
Notional
Amount of such Transaction for the Calculation Period of such
Transaction
(each as defined in the related Confirmation) which includes
such
Valuation Date, or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II) the
Threshold for Party A for such Valuation Date.
“S&P/Fitch
Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the
product of (A) the bid price obtained by the Valuation Agent for such Eligible
Collateral and (B) the S&P Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
“Transaction
Exposure”
means,
for any Transaction, Exposure determined as if such Transaction were the
only
Transaction between the Secured Party and the Pledgor.
“Transaction-Specific
Hedge” means
any
Transaction that is (i) an interest rate swap in respect of which (x) the
notional amount of the interest rate swap is “balance guaranteed” or (y) the
notional amount of the interest rate swap for any Calculation Period (as
defined
in the related Confirmation) otherwise is not a specific dollar amount
that is
fixed at the inception of the Transaction, (ii) an interest rate cap, (iii)
an
interest rate floor or (iv) an interest rate swaption.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P/Fitch Value, Xxxxx’x First Trigger
Value, or Xxxxx’x Second Trigger Value with respect to any Eligible Collateral
or Posted Collateral, the applicable S&P/Fitch Valuation Percentage, Xxxxx’x
First Trigger Valuation Percentage, or Xxxxx’x Second Trigger Valuation
Percentage for such Eligible Collateral or Posted Collateral, respectively,
in
each case as set forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P/Fitch Value, the related
Xxxxx’x First Trigger Value, and the related Xxxxx’x Second Trigger
Value.
“Volatility
Buffer”
means,
for any Transaction, the related percentage set forth in the following
table.
|
The
higher of the S&P short-term credit rating of (i) Party A and (ii) the
Credit Support Provider of Party A, if applicable
|
Remaining
Weighted Average Maturity
up
to 3 years
|
Remaining
Weighted Average Maturity
up
to 5 years
|
Remaining
Weighted Average Maturity
up
to 10 years
|
Remaining
Weighted Average Maturity
up
to 30 years
|
||||
|
“A-2”
or higher
|
2.75%
|
3.25%
|
4.00%
|
4.75%
|
||||
|
“A-3”
|
3.25%
|
4.00%
|
5.00%
|
6.25%
|
||||
|
“BB+”
or
lower
|
3.50%
|
4.50%
|
6.75%
|
7.50%
|
[Remainder
of this page intentionally left blank]
SCHEDULE
A
ELIGIBLE
COLLATERAL
|
ISDA
Collateral
Asset
Definition
(ICAD)
Code
|
Remaining
Maturity in Years
|
S&P
Valuation
Percentage
|
Xxxxx’x
First
Trigger Valuation
Percentage
|
Xxxxx’x
Second
Trigger
Valuation
Percentage
|
||||
|
(A)
US-CASH
|
N/A
|
100%
|
100%
|
100%
|
||||
|
(B)
EU-CASH
|
N/A
|
92.5%
|
98%
|
94%
|
||||
|
(C)
GB-CASH
|
N/A
|
94.1%
|
98%
|
95%
|
||||
|
(D)
US-TBILL
US-TNOTE
US-TBOND
|
||||||||
|
1
or less
|
98.9%
|
100%
|
100%
|
|||||
|
More
than 1 but not more than 2
|
98.0%
|
100%
|
99%
|
|||||
|
More
than 2 but not more than 3
|
97.4%
|
100%
|
98%
|
|||||
|
More
than 3 but not more than 5
|
95.5%
|
100%
|
97%
|
|||||
|
More
than 5 but not more than 7
|
93.7%
|
100%
|
96%
|
|||||
|
More
than 7 but not more than 10
|
92.5%
|
100%
|
94%
|
|||||
|
More
than 10 but not more than 20
|
91.1%
|
100%
|
90%
|
|||||
|
More
than 20
|
88.6%
|
100%
|
88%
|
|||||
|
(E)
US-GNMA
US-FNMA
US-FHLMC
|
||||||||
|
1
or less
|
98.5%
|
100%
|
99%
|
|||||
|
More
than 1 but not more than 2
|
97.7%
|
100%
|
99%
|
|||||
|
More
than 2 but not more than 3
|
97.3%
|
100%
|
98%
|
|||||
|
More
than 3 but not more than 5
|
94.5%
|
100%
|
96%
|
|||||
|
More
than 5 but not more than 7
|
93.1%
|
100%
|
93%
|
|||||
|
More
than 7 but not more than 10
|
90.7%
|
100%
|
93%
|
|||||
|
More
than 10 but not more than 20
|
87.7%
|
100%
|
89%
|
|||||
|
More
than 20
|
84.4%
|
100%
|
87%
|
|||||
|
(F)
Fixed-Rate GA-EUROZONE
GOV
|
Rated
AAA or better by S&P
|
Rated
Aa3 or better by Xxxxx'x
|
Rated
Aa3 or better by Xxxxx'x
|
|||||
|
1
or less
|
98.8%
|
98%
|
94%
|
|||||
|
More
than 1 but not more than 2
|
97.9%
|
98%
|
93%
|
|||||
|
More
than 2 but not more than 3
|
97.1%
|
98%
|
92%
|
|||||
|
More
than 3 but not more than 5
|
91.2%
|
98%
|
90%
|
|||||
|
More
than 5 but not more than 7
|
87.5%
|
98%
|
89%
|
|||||
|
More
than 7 but not more than 10
|
83.8%
|
98%
|
88%
|
|||||
|
More
than 10 but not more than 20
|
75.5%
|
98%
|
84%
|
The
ISDA
Collateral Asset Definition (ICAD) Codes used in this Schedule A are taken
from
the Collateral Asset Definitions (First Edition - June 2003) as published
and
copyrighted in 2003 by the International Swaps and Derivatives Association,
Inc.
EXHIBIT
P
ADDITIONAL
DISCLOSURE NOTIFICATION
**SEND
TO XXXXX FARGO VIA FAX TO 000-000-0000 AND VIA EMAIL TO
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY BELOW. SEND TO THE DEPOSITOR AT THE ADDRESS
BELOW**
Xxxxx
Fargo Bank, N.A. as Securities Administrator
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail:
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attn:
Corporate Trust Services - Soundview Home Loan Trust 2007-1-SEC REPORT
PROCESSING
RE:
**Additional Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Pooling and Servicing Agreement,
dated as of February 1, 2007, among the Depositor, Ocwen Loan Servicing,
LLC as
servicer (the “Servicer”), Xxxxx Fargo Bank, N.A. as master servicer and trust
administrator (the “Master Servicer” and “Trust Administrator”), and Deutsche
Bank National Trust Company, a national banking association, as trustee (the
“Trustee”). The Undersigned, as [ ], hereby notifies you that
certain events have come to our attention that [will][may] need to be disclosed
on Form [ ].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this notification should be directed to [ ],
phone number: [ ]; email address: [ ].
[NAME
OF
PARTY]
as
[role]
By:
______________________________
Name:
Title:
EXHIBIT
Q
FORM
OF
INTEREST RATE SWAP AGREEMENT
|
|
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
000
XXXXXXX XXXXXX
XXX
XXXX, XXX XXXX 00000
212-272-4009
|
|
DATE:
|
February
28, 2007
|
|
|
|
|
TO:
|
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely
as
Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest
Trust with respect to the Soundview Home Loan Trust 2007-1,
Asset-Backed
Certificates, Series 2007-1
|
|
ATTENTION:
|
Client
Manager - Soundview 2007-1
|
|
FACSIMILE:
|
000-000-0000
|
|
TO:
|
The
Royal Bank of Scotland plc, London
|
|
ATTENTION:
|
Xxxxxxx
Xxxxxxx
|
|
FACSIMILE:
|
000-000-0000
|
|
FROM:
|
Derivatives
Documentation
|
|
TELEPHONE:
|
000-000-0000
|
|
FACSIMILE:
|
000-000-0000
|
|
RE:
|
Novation
Confirmation
|
|
REFERENCE
NUMBER(S):
|
FXNEC9255-BXNE218637
|
The
purpose of this letter is to confirm the terms and conditions of the Novation
Transaction entered into between the parties and effective from the Novation
Date specified below. This Novation Confirmation constitutes a “Confirmation” as
referred to in the New Agreement specified below.
1.
The
definitions and provisions contained in the 2004 ISDA Novation Definitions
(the
“Definitions”) and the terms and provisions of the 2000 ISDA
Definitions,
as
published by the International Swaps and Derivatives Association, Inc.
and
amended from time to time, are incorporated in this Novation Confirmation.
In
the event of any inconsistency between (i) the Definitions, (ii) the 2000
ISDA
Definitions, and/or (iii) the Novation Agreement and this Novation Confirmation,
this Novation Confirmation will govern.
2.
The
terms
of the Novation Transaction to which this Novation Confirmation relates
are as
follows:
|
Novation
Trade Date:
|
February
28, 2007
|
|
|
Novation
Date:
|
February
28, 2007
|
|
|
Novated
Amount:
|
As
set forth in the New Confirmation
|
|
|
Transferor
1:
|
The
Royal Bank of Scotland plc
|
|
|
Transferor
2:
|
Bear
Xxxxxxx Bank plc
|
|
|
Transferee
1:
|
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely
as
Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest
Trust with respect to the Soundview Home Loan Trust 2007-1, Asset-Backed
Certificates, Series 2007-1
|
|
|
Transferee
2:
|
Bear
Xxxxxxx Financial Products Inc.
|
|
|
New
Agreement (between Transferee 1
and
Transferee 2):
|
The
Master Agreement as defined in the New Confirmation
|
|
|
|
||
3.
The
terms
of the Old Transaction to which this Novation Confirmation relates, for
identification purposes, are as follows:
|
Trade
Date of Old Transaction:
|
February
23, 2007
|
|
|
Effective
Date of Old Transaction:
|
November
25, 2007
|
|
|
Termination
Date of Old Transaction:
|
February
25, 2012
|
4. The
terms
of the New Transactions to which this Novation Confirmation relates shall
be as
specified in the New Confirmation attached hereto as Exhibit A, including
the
Credit Support Annex attached hereto as Annex A.
|
Full
First Calculation Period:
|
Applicable
|
5.
Offices:
|
Transferor
1:
|
London
|
|
|
Transferor
2:
|
Not
Applicable
|
|
|
Transferee
1:
|
Not
Applicable
|
|
|
Transferee
2:
|
Not
Applicable
|
The
parties confirm their acceptance to be bound by this Novation Confirmation
as of
the Novation Date by executing a copy of this Novation Confirmation and
returning a facsimile of the fully-executed Novation Confirmation to
000-000-0000.
Transferor
1 and Transferor 2, by their respective execution of a copy of this Novation
Confirmation, each agrees to the terms of the Novation Confirmation as
it
relates to the Old Transaction. Transferee 1 and Transferee 2, by their
respective execution of a copy of this Novation Confirmation, each agrees
to the
terms of the Novation Confirmation as it relates to the New Transaction.
For
inquiries regarding U.S. Transactions, please contact Derivatives
Documentation
by
telephone at 000-000-0000.
For all
other inquiries please contact Derivatives
Documentation by
telephone at 000-0-000-0000.
|
The
Royal Bank of Scotland plc
By:
Greenwich Capital Markets, Inc., its agent
|
Bear Xxxxxxx Bank plc | |
| By: _____________________________ | By: _____________________________ | |
|
Name:
Title:
Date:
|
Name:
Title:
Date:
|
|
|
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely
as
Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest
Trust with respect to the Soundview Home Loan Trust 2007-1, Asset-Backed
Certificates, Series 2007-1
|
Bear
Xxxxxxx Financial Products Inc.
|
|
| By: _____________________________ | By: _____________________________ | |
|
Name:
Title:
Date
|
Name:
Title:
Date
|
|
| lm/er |
|
|
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
000
XXXXXXX XXXXXX
XXX
XXXX, XXX XXXX 00000
212-272-4009
|
Exhibit
A
|
DATE:
|
February
28, 2007
|
|
|
|
|
TO:
|
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely
as
Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest
Trust with respect to the Soundview Home Loan Trust 2007-1,
Asset-Backed
Certificates, Series 2007-1
|
|
ATTENTION:
|
Client
Manager - Soundview 2007-1
|
|
TELEPHONE:
|
000-000-0000
|
|
FACSIMILE:
|
000-000-0000
|
|
FROM:
|
Derivatives
Documentation
|
|
TELEPHONE:
|
000-000-0000
|
|
FACSIMILE:
|
000-000-0000
|
|
SUBJECT:
|
Fixed
Income Derivatives Confirmation and Agreement
|
|
REFERENCE
NUMBER:
|
FXNEC9255
|
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
Bear Xxxxxxx Financial Products Inc. (“Party
A”) and
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely as Supplemental
Interest Trust Trustee on behalf of the Supplemental Interest Trust with
respect
to the Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series
2007-1 (“Party
B”).
Reference is hereby made to the Pooling and Servicing Agreement, dated
as
of February
1, 2007, among Financial Asset Securities Corp., as Depositor, Ocwen Loan
Servicing, LLC., as Servicer, Xxxxx Fargo Bank, N.A., as Master Servicer
and
Trust Administrator, and Deutsche Bank National Trust Company, as Trustee
(the
“Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you and
us to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit
Support
Annex to the Schedule.
| 1. |
This
Confirmation shall supplement, form a part of, and be subject
to an
agreement in the form of the ISDA Master Agreement (Multicurrency
- Cross
Border) as published and copyrighted in 1992 by the International
Swaps
and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement in such form
on the
date hereof, with a Schedule as set forth in Item 3 of this Confirmation,
and an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject
to New York Law Only version) as published and copyrighted in
1994 by the
International Swaps and Derivatives Association, Inc., with Paragraph
13
thereof as set forth in Annex A hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described herein
shall be the
sole Transaction governed by such ISDA Master Agreement. In the
event of
any inconsistency among any of the following documents, the relevant
document first listed shall govern: (i) this Confirmation, exclusive
of
the provisions set forth in Item 3 hereof and Annex A hereto;
(ii) the
provisions set forth in Item 3 hereof, which are incorporated
by reference
into the Schedule; (iii) the Credit Support Annex; (iv) the Definitions;
and (v) the ISDA Master Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference
herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
2. The
terms
of the particular Transaction to which this Confirmation relates are as
follows:
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth for
such period on
Schedule I attached hereto.
|
|
Trade
Date:
|
February
28, 2007
|
|
Termination
Date:
|
February
25, 2012, subject to adjustment in accordance with the Business
Day
Convention; provided, however, that for the purpose of determining
the
final Fixed Rate Payer Period End Date, Termination Date shall
be subject
to No Adjustment.
|
|
Fixed
Amount:
|
|
|
Fixed
Rate Payer:
|
Party
B
|
|
Effective
Date:
|
November
25, 2007
|
|
Fixed
Rate Payer
|
|
|
Period
End Dates:
|
The
25th calendar day of each month during the Term of this Transaction,
commencing December 25, 2007 and ending on the Termination
Date, with No
Adjustment.
|
|
Fixed
Rate Payer
|
|
|
Payment
Date:
|
Early
Payment shall be applicable. The Fixed Rate Payer Payment Date
shall be
one Business Day prior to each Fixed Rate Payer Period End
Date.
|
|
Fixed
Rate:
|
5.27500%
|
|
Fixed
Amount:
|
To
be determined in accordance with the following formula:
|
|
Scale
Factor * Fixed Rate * Notional Amount * Fixed Rate Day Count
Fraction.
|
|
|
Fixed
Rate Day
|
|
|
Count
Fraction:
|
30/360
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
Party
A
|
|
Effective
Date:
|
November
26, 2007
|
|
Floating
Rate Payer
|
|
|
Period
End Dates:
|
The
25th calendar day of each month during the Term of this Transaction,
commencing December 25, 2007 and ending on the Termination
Date, subject
to adjustment in accordance with the Business Day
Convention.
|
|
Floating
Rate Payer
|
|
|
Payment
Dates:
|
Early
Payment shall be applicable. The Fixed Rate Payer Payment Date
shall be
one Business Day prior to each Fixed Rate Payer Period End
Date.
|
|
|
|
|
Floating
Rate for initial
|
|
|
Calculation
Period:
|
To
be determined.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Floating
Amount:
|
To
be determined in accordance with the following formula:
|
|
Scale
Factor * Floating Rate * Notional Amount * Floating Rate Day
Count
Fraction.
|
|
|
Designated
Maturity:
|
One
month
|
|
Spread:
|
None
|
|
Floating
Rate Day
|
|
|
Count
Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York
|
|
Business
Day Convention:
|
Following
|
|
Scale
Factor:
|
250
|
|
Calculation
Agent:
|
Party
A
|
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
|
(b)
|
“Specified
Transaction”
will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party
means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will
not
apply to a specific party means that the other party shall not have such
rights.
| (i) |
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will
apply to
Party B; provided, however, that notwithstanding anything to
the contrary
in Section 5(a)(i) or in Paragraph 7 of the Credit Support Annex,
any
failure by Party A to comply with or perform any obligation to
be complied
with or performed by Party A under the Credit Support Annex shall
not
constitute an Event of Default under Section 5(a)(i) unless (A)
a Required
Ratings Downgrade Event has occurred and been continuing for
30 or more
Local Business Days and (B) such failure is not remedied on or
before the
third Local Business Day after notice of such failure is given
to Party
A.
|
| (ii) |
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will
not apply to
Party B.
|
| (iii) |
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided, however, that notwithstanding anything
to the
contrary in Section 5(a)(iii)(1), any failure by Party A to comply
with or
perform any obligation to be complied with or performed by Party
A under
the Credit Support Annex shall not constitute an Event of Default
under
Section 5(a)(iii) unless (A) a Required Ratings Downgrade Event
has
occurred and been continuing for 30 or more Local Business Days
and (B)
such failure is not remedied on or before the third Local Business
Day
after notice of such failure is given to Party
A.
|
| (iv) |
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will
not apply to
Party B.
|
| (v) |
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will
not apply to
Party B.
|
| (vi) |
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will
not apply to
Party B. For purposes of Section 5(a)(vi), solely with respect
to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14.
“Threshold
Amount” means USD 100,000,000.
| (vii) |
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2), (6)
(to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not apply
to Party
B; provided that, with respect to Party B only, Section 5(a)(vii)(4)
is
hereby amended by adding after the words “against it” the words
“(excluding any proceeding or petition instituted or presented
by Party A
or its Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by
deleting the words “to (7) inclusive” and inserting lieu thereof “, (3),
(4) as amended, (5), (6) as amended, or
(7)”.
|
| (viii) |
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will
apply to
Party B.
|
(d) Termination
Events.
The
statement below that a Termination Event will apply to a specific party
means
that upon the occurrence of such a Termination Event, if such specific
party is
the Affected Party with respect to a Tax Event, the Burdened Party with
respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected
Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that
such an
event will not apply to a specific party means that such party shall not
have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall have
the
right to designate an Early Termination Date in accordance with Section
6 of
this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to Party
B.
|
(ii)
|
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A and will
apply to
Party B.
|
|
(iii)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided that Party A shall not be entitled to designate
an Early
Termination Date by reason of a Tax Event upon Merger in respect
of which
it is the Affected Party.
|
|
(iv)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and
will not
apply to Party B.
|
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will
not apply to
Party B.
|
(f)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
| (i) |
The
Second Method will apply.
|
| (ii) |
Market
Quotation will apply, provided, however, that, if Party A is
the
Defaulting Party or the sole Affected Party, the following provisions
will
apply:
|
|
(A)
|
Section
6(e) is hereby amended by inserting on the first line thereof
the words
“or is effectively designated” after “If an Early Termination Date
occurs”;
|
|
(B)
|
The
definition of Market Quotation in Section 14 shall be deleted
in its
entirety and replaced with the following:
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, and a party making
the
determination, an amount determined on the basis of one or more Firm Offers
from
Reference Market-makers that are Eligible Replacements. Each Firm Offer
will be
(1) for an amount that would be paid to Party B (expressed as a negative
number)
or by Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (2) made on the basis that Unpaid Amounts in respect of
the
Terminated Transaction or group of Transactions are to be excluded but,
without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date are to be included.
The
party making the determination (or its agent) will request each Reference
Market-maker that is an Eligible Replacement to provide its Firm Offer
to the
extent reasonably practicable as of the same day and time (without regard
to
different time zones) on or as soon as reasonably practicable after the
designation or occurrence of the relevant Early Termination Date. The day
and
time as of which those Firm Offers are to be provided (the “bid time”) will be
selected in good faith by the party obliged to make a determination under
Section 6(e), and, if each party is so obliged, after consultation with
the
other. If at least one Firm Offer from an Approved Replacement (which,
if
accepted, would determine the Market Quotation) is provided at the bid
time, the
Market Quotation will be the Firm Offer (among such Firm Offers as specified
in
clause (C) below) actually accepted by Party B no later than the Business
Day
immediately preceding the Early Termination Date. If no Firm Offer from
an
Approved Replacement (which, if accepted, would determine the Market Quotation)
is provided at the bid time, it will be deemed that the Market Quotation
in
respect of such Terminated Transaction or group of Transactions cannot
be
determined.
|
(C)
|
If
more than one Firm Offer from an Approved Replacement (which,
if accepted,
would determine the Market Quotation) is provided at
the bid time,
Party B shall accept the Firm Offer (among such Firm Offers)
which would
require either (x) the lowest payment by Party B to the Reference
Market-maker, to the extent Party B would be required to make
a payment to
the Reference Market-maker or (y) the highest payment from the
Reference
Market-maker to Party B, to the extent the Reference Market-maker
would be
required to make a payment to Party B. If only one Firm Offer
from an
Approved Replacement (which, if accepted, would determine the
Market
Quotation) is provided at the bid time, Party B shall accept
such Firm
Offer.
|
|
(D)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so.
|
|
(E)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
|
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect
of the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid
Amounts
owing to Party B; provided, however, that (x) the amounts payable under
the
immediately preceding clauses (II) and (III) shall be subject to netting
in
accordance with Section 2(c) of this Agreement and (y) notwithstanding
any other
provision of this Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted-off against any amount payable
by
Party B under the immediately preceding clause (I).”
(g)
“Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)
Tax
Representations.
|
(i)
|
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
|
(A)
Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment
(other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement.
In
making
this representation, it may rely on:
|
(1)
|
the
accuracy of any representations made by the other party pursuant
to
Section 3(f) of this Agreement;
|
|
(2)
|
the
satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of
this Agreement and the accuracy and effectiveness of any document
provided
by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of
this
Agreement; and
|
|
(3)
|
the
satisfaction of the agreement of the other party contained in
Section 4(d)
of this Agreement, provided that it shall not be a breach of
this
representation where reliance is placed on clause (ii) and the
other party
does not deliver a form or document under Section 4(a)(iii) by
reason of
material prejudice to its legal or commercial
position.
|
(B)
Party
B
makes the following representation(s):
None.
(ii)
Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
Party
A
is a corporation organized under the laws of the State of Delaware and
its U.S.
taxpayer identification number is 00-0000000.
(B)
Party
B
makes the following representation(s):
None.
|
(b)
|
Tax
Provisions.
|
|
(i)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, such that
Party B
shall not be required to pay any additional amounts referred
to
therein.
|
|
(ii)
|
Indemnifiable
Tax.
Notwithstanding the definition of “Indemnifiable Tax” in Section 14 of
this Agreement, all Taxes in relation to payments by Party A
shall be
Indemnifiable Taxes (including any Tax imposed in relation to
a Credit
Support Document or in relation to any payment thereunder) unless
(i) such
Taxes are assessed directly against Party B and not by deduction
or
withholding by Party A or (ii) arise as a result of a Change
in Tax Law
(in which case such Tax shall be an Indemnifiable Tax only if
such Tax
satisfies the definition of Indemnifiable Tax provided in Section
14). In
relation to payments by Party B, no Tax shall be an Indemnifiable
Tax.
|
Part
3. Agreement
to Deliver Documents.
(a) For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
|
Party
required to
deliver
document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
||
|
Party
A
|
An
original properly completed and executed United States Internal
Revenue
Service Form W-9 (or any successor thereto) with respect to any
payments
received or to be received by Party A that eliminates U.S. federal
withholding and backup withholding Tax on payments to Party A
under this
Agreement.
|
(i)
upon execution of this Agreement, (ii) on or before the first
payment date
under this Agreement, including any Credit Support Document,
(iii)
promptly upon the reasonable demand by Party B, (iv) prior to
the
expiration or obsolescence of any previously delivered form,
and (v)
promptly upon the information on any such previously delivered
form
becoming inaccurate or incorrect.
|
||
|
Party
B
|
(i)
Upon execution of this Agreement, an original properly completed
and
executed United States Internal Revenue Service Form W-9 (or
any successor
thereto) with respect to any payments received or to be received
by the
initial beneficial owner of payments to Party B that eliminates
U.S.
federal withholding and backup withholding Tax on payments to
Party B
under this Agreement, and (ii) thereafter, the appropriate tax
certification form (i.e., IRS Form W-9 or IRS Form X-0XXX, X-0XXX,
X-0XXX
or W-8ECI, as applicable (or any successor form thereto)) with
respect to
any payments received or to be received by the beneficial owner
of
payments to Party B under this Agreement from time to time.
|
(i)
upon execution of this Agreement, (ii) on or before the first
payment date
under this Agreement, including any Credit Support Document,
(iii) in the
case of a tax certification form other than a Form W-9, before
December 31
of each third succeeding calendar year, (iv) promptly upon the
reasonable
demand by Party B, (v) prior to the expiration or obsolescence
of any
previously delivered form, and (vi) promptly upon the information
on any
such previously delivered form becoming inaccurate or
incorrect.
|
(b) For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
|
Party
required to
deliver
document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|||
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for
it to execute
and deliver the Agreement, this Confirmation, and any Credit
Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|||
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the
incumbency
and authority of the respective officers of the party signing
the
Agreement, this Confirmation, and any relevant Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|||
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements
certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country
in which
Party A is organized
|
Upon
request by Party B
|
Yes
|
|||
|
Party
A
|
Quarterly
Financial Statements of Party A containing unaudited, consolidated
financial statements of Party A’s fiscal quarter prepared in accordance
with generally accepted accounting principles in the country
in which
Party A is organized
|
Upon
request by Party B
|
Yes
|
|||
|
Party
A and
Party
B
|
An
opinion of counsel of such party regarding the enforceability
of this
Agreement in a form reasonably satisfactory to the other
party.
|
Upon
the execution and delivery of this Agreement
|
No
|
|||
|
Party
B
|
An
executed copy of the Pooling and Servicing Agreement
|
Promptly
upon filing of such agreement with the U.S. Securities and Exchange
Commission
|
No
|
Part
4. Miscellaneous.
|
(a)
|
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
|
|
Address
for notices or communications to Party A:
|
|
|
Address:
|
000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
|
|
Attention:
|
DPC
Manager
|
|
Facsimile:
|
(000)
000-0000
|
|
with
a copy to:
|
|
|
Address:
|
Xxx
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
|
|
Attention:
|
Derivative
Operations 7th Floor
|
|
Facsimile:
|
(000)
000-0000
|
|
(For
all purposes)
|
|
|
Address
for notices or communications to Party B:
|
|
|
Address:
|
Xxxxx
Fargo Bank, N.A.
|
|
|
0000
Xxx Xxxxxxxxx Xxxx
|
|
|
Xxxxxxxx,
XX 00000
|
|
Attention:
|
Client
Manager - Soundview 2007-1
|
|
Facsimile:
|
000-000-0000
|
|
Phone:
|
000-000-0000
|
|
(For
all purposes)
|
|
(b)
Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this Agreement;
neither
Party A nor Party B has any Offices other than as set forth in
the Notices
Section.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is not a Multibranch Party.
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A.
|
(f)
Credit
Support Document.
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
Party
B: The
Credit Support Annex.
|
(g)
|
Credit
Support Provider.
|
Party
A: The
guarantor under any guarantee in support of Party A’s obligations under this
Agreement.
Party
B: None.
|
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of the
State of
New York shall govern their rights and duties in whole, without
regard to
the conflict of law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
|
|
(i)
|
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will
apply to
each Transaction hereunder.
|
|
(j)
|
Affiliate.
Party A and Party B shall be deemed to have no Affiliates for
purposes of
this Agreement, including for purposes of Section
6(b)(ii).
|
Part
5. Others
Provisions.
|
(a)
|
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions
as published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to a
“Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
|
(b)
Amendments
to ISDA Master Agreement.
|
(i)
|
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
|
|
(ii)
|
[Reserved.]
|
|
(iii)
|
[Reserved.]
|
|
(iv)
|
Representations.
Section 3 is hereby amended by adding at the end thereof the
following
subsection (g):
|
|
“(g)
|
Relationship
Between Parties.
|
|
(1)
|
Nonreliance.
(i) It is not relying on any statement or representation of the
other
party regarding the Transaction (whether written or oral), other
than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction, (ii) it has consulted with its own
legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and
upon any
advice from such advisors as it has deemed necessary and not
upon any view
expressed by the other party, (iii) it is not relying on any
communication
(written or oral) of the other party as investment advice or
as a
recommendation to enter into this Transaction; it being understood
that
information and explanations related to the terms and conditions
of this
Transaction shall not be considered investment advice or a recommendation
to enter into this Transaction, and (iv) it has not received
from the
other party any assurance or guaranty as to the expected results
of this
Transaction.
|
|
(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and
has made its
own decision to enter into the Transaction and (ii) it understands
the
terms, conditions and risks of the Transaction and is willing
and able to
accept those terms and conditions and to assume those risks,
financially
and otherwise.
|
|
(3)
|
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
|
|
(4)
|
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible swap participant” as such term is
defined in, Section 35.1(b)(2) of the regulations (17 C.F.R.
35)
promulgated under, and an “eligible contract participant” as defined in
Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
|
|
(v)
|
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words
“or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) deleting the last paragraph thereof and inserting the
following
in lieu thereof:
|
“Notwithstanding
anything to the contrary in Section 7 (as amended herein) and Part 5(f),
any
transfer by Party A under this Section 6(b)(ii) shall not require the consent
of
Party B for such transfer if the following conditions are
satisfied:
|
(1)
|
the
transferee (the “Section 6 Transferee”) is an Eligible
Replacement;
|
|
(2)
|
if
the Section 6 Transferee is domiciled in a different country
or political
subdivision thereof from both Party A and Party B, such transfer
satisfies
the Rating Agency Condition;
|
|
(3)
|
the
Section 6 Transferee will not, as a result of such transfer,
be required
on the next succeeding Scheduled Payment Date to withhold or
deduct on
account of any Tax (except in respect of default interest) amounts
in
excess of that which Party A would, on the next succeeding Scheduled
Payment Date have been required to so withhold or deduct unless
the
Section 6 Transferee would be required to make additional payments
pursuant to Section 2(d)(i)(4) corresponding to such excess;
|
|
(4)
|
a
Termination Event or Event of Default does not occur as a result
of such
transfer; and
|
|
(5)
|
the
Section 6 Transferee confirms in writing that it will accept
all of the
interests and obligations in and under this Agreement which are
to be
transferred to it in accordance with the terms of this
provision.”
|
|
(vi)
|
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph 1 and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
|
|
(vii)
|
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby
amended by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events.
The following Additional Termination Events will
apply:
|
(i)
S&P/Fitch
First Level Downgrade.
If an
S&P/Fitch Approved Ratings Downgrade Event has occurred and is continuing
and Party A fails to take any action described under Part (5)(d)(i)(1),
within
the time period specified therein, then an Additional Termination Event
shall
have occurred with respect to Party A, Party A shall be the sole Affected
Party
with respect to such Additional Termination Event and all Transactions
hereunder
shall be Affected Transaction.
(ii)
Moody’s
First Rating Trigger Collateral.
If (A)
it is not the case that a Moody’s Second Trigger Ratings Event has occurred and
been continuing for 30 or more Local Business Days and (B) Party
A
has failed to comply with or perform any obligation to be complied with
or
performed by Party A in accordance with the Credit Support Annex, then
an
Additional Termination Event shall have occurred with respect to Party
A, Party
A shall be the sole Affected Party with respect to such Additional Termination
Event and all Transactions hereunder shall be Affected Transactions.
(iii)
S&P/Fitch
Second Level Downgrade.
If an
S&P/Fitch Required Ratings Downgrade Event has occurred and is continuing
and Party A fails to take any action described under Part (5)(d)(i)(2)
within
the time period specified therein, then an Additional Termination Event
shall
have occurred with respect to Party A, Party A shall be the sole Affected
Party
with respect to such Additional Termination Event and all Transactions
hereunder
shall be Affected Transaction.
(iv)
Moody’s
Second Rating Trigger Replacement.
If (A) a
Moody’s Second Trigger Ratings Event has occurred and been continuing for 30
or
more Local Business Days and (B) (i) at least one Eligible Replacement
has made
a Firm Offer to be the transferee of all of Party A’s rights and obligations
under this Agreement (and such Firm Offer remains an offer that will become
legally binding upon such Eligible Replacement upon acceptance by the offeree)
and/or (ii) an Eligible Guarantor has made a Firm Offer to provide an Eligible
Guarantee (and such Firm Offer remains an offer that will become legally
binding
upon such Eligible Guarantor immediately upon acceptance by the offeree),
then
an Additional Termination Event shall have occurred with respect to Party
A,
Party A shall be the sole Affected Party with respect to such Additional
Termination Event and all Transactions hereunder shall be Affected Transactions.
(v)
Amendment
of the Pooling and Servicing Agreement.
If,
without the prior written consent of Party A where such consent is required
under the Pooling and Servicing Agreement (such consent not to be unreasonably
withheld), an amendment is made to the Pooling and Servicing Agreement
which
amendment could reasonably be expected to have a material adverse effect
on the
interests of Party A under this Agreement, an Additional Termination Event
shall
have occurred with respect to Party B, Party B shall be the sole Affected
Party
with respect to such Additional Termination Event and all Transactions
hereunder
shall be Affected Transactions.
(vi)
Optional
Termination of Securitization.
An
Additional Termination Event shall occur upon the notice to Certificateholders
of an Optional Termination becoming unrescindable in accordance with Article
X
of the Pooling and Servicing Agreement (such notice, the “Optional
Termination Notice”).
With
respect to such Additional Termination Event: (A) Party B shall be the
sole
Affected Party; (B) notwithstanding anything to the contrary in Section
6(b)(iv)
or Section 6(c)(i), the final Distribution Date specified in the Optional
Termination Notice is hereby designated as the Early Termination Date for
this
Additional Termination Event in respect of all Affected Transactions; (C)
Section 2(a)(iii)(2) shall not be applicable to any Affected Transaction
in
connection with the Early Termination Date resulting from this Additional
Termination Event; notwithstanding anything to the contrary in Section
6(c)(ii),
payments and deliveries under Section 2(a)(i) or Section 2(e) in respect
of the
Terminated Transactions resulting from this Additional Termination Event
will be
required to be made through and including the Early Termination Date designated
as a result of this Additional Termination Event; provided, for the avoidance
of
doubt, that any such payments or deliveries that are made on or prior to
such
Early Termination Date will not be treated as Unpaid Amounts in determining
the
amount payable in respect of such Early Termination Date; (D) notwithstanding
anything to the contrary in Section 6(d)(i), (I) if, no later than 4:00
pm New
York City time on the day that is four Business Days prior to the final
Distribution Date specified in the Optional Termination Notice, the Trustee
requests the amount of the Estimated Swap Termination Payment, Party A
shall
provide to the Trustee in writing (which may be done in electronic format)
the
amount of the Estimated Swap Termination Payment no later than 2:00 pm
New York
City time on the following Business Day and (II) if the Trustee provides
written
notice (which may be done in electronic format) to Party A no later than
two
Business Days prior to the final Distribution Date specified in the Optional
Termination Notice that all requirements of the Optional Termination have
been
met, then Party A shall, no later than one Business Day prior to the final
Distribution Date specified in the Optional Termination Notice, make the
calculations contemplated by Section 6(e) of the ISDA Master Agreement
(as
amended herein) and provide to the Trustee in writing (which may be done
in
electronic format) the amount payable by either Party B or Party A in respect
of
the related Early Termination Date in connection with this Additional
Termination Event; provided, however, that the amount payable by Party
B, if
any, in respect of the related Early Termination Date shall be the lesser
of (x)
the amount calculated to be due by Party B pursuant to Section 6(e) and
(y) the
Estimated Swap Termination Payment; and (E) notwithstanding anything to
the
contrary in this Agreement, any amount due from Party B to Party A in respect
of
this Additional Termination Event will be payable on the final Distribution
Date
specified in the Optional Termination Notice and any amount due from Party
A to
Party B in respect of this Additional Termination Event will be payable
one
Business Day prior to the final Distribution Date specified in the Optional
Termination Notice.
(vii)
[Reserved].
(viii)
Failure
to Pay Class A Certificates.
If the
Securities Administrator on behalf of the Trust is unable to pay, or fails
or
admits in writing its inability to pay (1) on any Distribution Date, any
Accrued
Certificate Interest Distribution Amount with respect to the Class A
Certificates or (2) by the Distribution Date immediately following the
maturity
date for the Mortgage Loan with the latest maturity date, the ultimate
payment
of principal with respect to the Class A Certificates, in either case to
the
extent required pursuant to the terms of the Pooling and Servicing Agreement
to
be paid to the Class A Certificates, then an Additional Termination Event
shall
have occurred with respect to Party B, Party B shall be the sole Affected
Party
and all Transactions hereunder shall be Affected Transactions.
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(d)
|
Rating
Agency Downgrade.
|
(i)
S&P/Fitch
Downgrade:
|
(1)
|
In
the event that an S&P/Fitch Approved Ratings Downgrade Event occurs
and is continuing, then within 30 days after such rating downgrade,
Party
A shall, subject to the Rating Agency Condition with respect
to S&P
and Fitch, at its own expense, either (i) procure a Permitted
Transfer,
(ii) obtain an Eligible Guarantee or (iii) post collateral in
accordance
with the Credit Support Annex.
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|
(2)
|
In
the event that an S&P/Fitch Required Ratings Downgrade Event occurs
and is continuing, then within 10 Local Business Days after such
rating
withdrawal or downgrade, Party A shall, subject to the Rating
Agency
Condition with respect to S&P and Fitch, at its own expense, procure
either (i) a Permitted Transfer or (ii) an Eligible
Guarantee.
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(ii)
Moody’s
Downgrade.
|
(1)
|
In
the event that a Moody’s Second Trigger Ratings Event occurs and is
continuing, Party A shall, as soon as reasonably practicable
thereafter,
at its own expense and using commercially reasonable efforts,
either (i)
procure a Permitted Transfer or (ii) obtain an Eligible Guarantee.
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|
(e)
|
Compliance
with Regulation AB.
|
|
(i)
|
Bear
Xxxxxxx agrees and acknowledges that Financial Asset Securities
Corp.
(“Depositor”) is required under Regulation AB under the Securities Act of
1933, as amended (the “Act”), and the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) (“Regulation AB”), to disclose certain
financial information regarding Bear Xxxxxxx or its group of
affiliated
entities, if applicable, depending on the aggregate “significance
percentage” of this Agreement and any other derivative contracts between
Bear Xxxxxxx or its group of affiliated entities, if applicable,
and
Counterparty, as calculated from time to time in accordance with
Item 1115
of Regulation AB.
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|
(ii)
|
It
shall be a swap/cap disclosure event (“Swap Disclosure Event”) if, on any
Business Day after the date hereof, Depositor requests from Bear
Xxxxxxx
the applicable financial information described in Item 1115 of
Regulation
AB (such request to be based on a reasonable determination by
Depositor,
in good faith, that such information is required under Regulation
AB with
respect to this Transaction) (the “Swap Financial
Disclosure”).
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|
(iii)
|
Upon
the occurrence of a Swap Disclosure Event, Bear Xxxxxxx, at its
own
expense, shall either (1)(a) (i) provide to Depositor the current
Swap
Financial Disclosure in an XXXXX-compatible format (for example,
such
information may be provided in Microsoft Word® or Microsoft Excel® format
but not in .pdf format) or (ii) provide written consent to Depositor
to
incorporation by reference of such current Swap Financial Disclosure
that
are filed with the Securities and Exchange Commission in the
reports of
the Trust filed pursuant to the Exchange Act, (b) if applicable,
cause its
outside accounting firm to provide its consent to filing or incorporation
by reference of such accounting firm’s report relating to their audits of
such current Swap Financial Disclosure in the Exchange Act Reports
of
Depositor, and (c) provide to Depositor any updated Swap Financial
Disclosure with respect to Bear Xxxxxxx within five days of the
release of
any such updated Swap Financial Disclosure (but in no event more
than 45
days after the end of each of Bear Xxxxxxx’x fiscal quarter for any
quarterly update); (2) secure another entity to replace Bear
Xxxxxxx as
party to this Agreement by way of a Permitted Transfer on terms
substantially similar to this Agreement, which entity (or a guarantor
therefore) satisfies the Rating Agency Condition and which entity
is able
to comply with the requirements of Item 1115 of Regulation AB
and rule
3-10(b) of Regulation S-X, or (3) obtain a guaranty of Bear Xxxxxxx’x
obligations under this Agreement from an affiliate of Bear Xxxxxxx
that is
able to comply with the financial information disclosure requirements
of
Item 1115 of Regulation AB and rule 3-10(b) of Regulation S-X,
and cause
such affiliate to provide Swap Financial Disclosure and any future
Swap
Financial Disclosure, such that disclosure provided in respect
of such
affiliate will satisfy any disclosure requirements applicable
to the Swap
Provider.
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|
(iv)
|
(a)
Bear Xxxxxxx hereby agrees to indemnify and hold harmless Depositor,
the
respective present and former directors, officers, employees
and agents of
each of the foregoing and each person, if any, who controls Depositor
within the meaning of Section 15 of the Act, or Section 20 of
the Exchange
Act, from and against any and all losses, claims, liabilities,
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 as and when such losses, claims, liabilities, damages,
penalties,
fines forfeitures, legal fees or expenses or related costs, judgments,
or
any other costs, fees or expenses are incurred, insofar as such
losses,
claims, liabilities, damages, penalties, fines forfeitures, legal
fees or
expenses or related costs, judgments, or any other costs, fees
or expenses
(or actions in respect thereof) arise out of or are based upon
any untrue
statement or alleged untrue statement of any material fact contained
in
the Swap Financial Disclosure, or arise out of, or are based
upon, the
omission or alleged omission to state in the Swap Financial Disclosure
any
material fact required to be stated therein or necessary to make
the
statements in the Swap Financial Disclosure, as applicable, in
light of
the circumstances under which they were made, not misleading,
and Bear
Xxxxxxx shall reimburse Depositor, the present and former respective
officers, directors, employees and agents of each of the foregoing
and any
such controlling person for any legal or other expenses reasonably
incurred by it or any of them in connection with investigating
or
defending any such losses, claims, liabilities, damages, penalties,
fines,
forfeitures, legal fees or expenses or related costs, judgments,
or any
other costs, fees or expenses, as and when
incurred.
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(b)
If
(i) Bear Xxxxxxx fails to provide the Swap Financial Disclosure or any
required
auditor’s consents to Depositor pursuant to Section 16(iii) hereof (a “Swap
Financial Disclosure Failure”), (ii) as a result of such Swap Financial
Disclosure Failure an Early Termination Date is designated hereunder by
Counterparty and (iii) such Swap Financial Disclosure Failure results in
a
failure by Depositor to file a report required by the Exchange Act, Bear
Xxxxxxx
hereby agrees to reimburse Depositor, the present and former respective
officers, directors, employees and agents of each of the foregoing and
any such
controlling person for any legal or other expenses reasonably incurred
by it or
any of them in connection with the investigation or defense of any inquiry
or
investigation by the Securities and Exchange Commission resulting from
such Swap
Financial Disclosure Failure; provided that in no event shall Bear Xxxxxxx
be
required to indemnify Depositor, the present and former respective officers,
directors, employees and agent of each of the foregoing and any such controlling
person for any lost profit or damages with respect to this Transaction
or any
other transaction (whether such lost profit or damages is characterized
as
indirect, punitive, consequential, special damages or otherwise), even
if at the
time of such failure Bear Xxxxxxx is aware of the possibility of such lost
profit or damages.
|
(v)
|
Depositor
shall be an express third party beneficiary of this Agreement
as if a
party hereto to the extent of Depositor’s rights explicitly specified in
this Part 5(e).
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|
(f)
|
Transfers.
|
(i)
Section
7
is hereby amended to read in its entirety as follows:
“Except
with respect to a Permitted Transfer pursuant to Section 6(b)(ii), Part
5(d),
Part 5(b)(v) or the succeeding sentence, neither Party A nor Party B is
permitted to assign, novate or transfer (whether by way of security or
otherwise) as a whole or in part any of its rights, obligations or interests
under the Agreement or any Transaction unless (a) the prior written consent
of
the other party is obtained and (b) the Rating Agency Condition has been
satisfied with respect to S&P and Fitch. At any time at which no Relevant
Entity has credit ratings at least equal to the Approved Ratings Threshold,
Party A may make a Permitted Transfer.”
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(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains
an offer that
will become legally binding upon acceptance by Party B) to be
the
transferee pursuant to a Permitted Transfer, Party B shall, at
Party A’s
written request and at Party A’s expense, execute such documentation
provided to it as is reasonably deemed necessary by Party A to
effect such
transfer.
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|
(g)
|
Non-Recourse.
Party A acknowledges and agree that, notwithstanding any provision
in this
Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from
the
Supplemental Interest Trust and the proceeds thereof, in accordance
with
the priority of payments and other terms of the Pooling and Servicing
Agreement and that Party A will not have any recourse to any
of the
directors, officers, agents, employees, shareholders or affiliates
of
Party B with respect to any claims, losses, damages, liabilities,
indemnities or other obligations in connection with any transactions
contemplated hereby. In the event that the Supplemental Interest
Trust and
the proceeds thereof, should be insufficient to satisfy all claims
outstanding and following the realization of the Supplemental
Interest
Trust and the proceeds thereof, any claims against or obligations
of Party
B under this Agreement or any other confirmation thereunder still
outstanding shall be extinguished and thereafter not revive.
The
Supplemental Interest Trust Trustee shall not have liability
for any
failure or delay in making a payment hereunder to Party A due
to any
failure or delay in receiving amounts in the Supplemental Interest
Trust
from the Trust created pursuant to the Pooling and Servicing
Agreement.
This provision will survive the termination of this
Agreement.
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|
(h)
|
Timing
of Payments
by Party B upon Early Termination.
Notwithstanding anything to the contrary in Section 6(d)(ii),
to the
extent that all or a portion (in either case, the “Unfunded Amount”) of
any amount that is calculated as being due in respect of any
Early
Termination Date under Section 6(e) from Party B to Party A will
be paid
by Party B from amounts other than any upfront payment paid to
Party B by
an Eligible Replacement that has entered a Replacement Transaction
with
Party B, then such Unfunded Amount shall be due on the next subsequent
Distribution Date following the date on which the payment would
have been
payable as determined in accordance with Section 6(d)(ii), and
on any
subsequent Distribution Dates until paid in full (or if such
Early
Termination Date is the final Distribution Date, on such final
Distribution Date); provided, however, that if the date on which
the
payment would have been payable as determined in accordance with
Section
6(d)(ii) is a Distribution Date, such payment will be payable
on such
Distribution Date.
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|
(i)
|
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Swap Rating Agency has been given prior written notice of
such
designation or transfer.
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|
(j)
|
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6 or
Part
1(f)(i)(D) hereof, and notwithstanding any other provision of
this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off,
net, recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date
and
determined pursuant to this Section will be subject to any
Set-off.”.
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|
(k)
|
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Swap Rating
Agencies
has been provided prior written notice of the same and such amendment
satisfies the Rating Agency Condition with respect to S&P and
Fitch.
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|
(l)
|
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving
of notice or
passage of time or both would constitute) an Event of Default
or
Termination Event with respect to such party, promptly to give
the other
Party and to each Swap Rating Agency notice of such event or
condition;
provided that failure to provide notice of such event or condition
pursuant to this Part 5(l) shall not constitute an Event of Default
or a
Termination Event.
|
(m)
Proceedings.
No
Relevant Entity shall institute against, or cause any other person to institute
against, or join any other person in instituting against Party B, the
Supplemental Interest Trust, or the trust formed pursuant to the Pooling
and
Servicing Agreement, in any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law for a period of one year (or, if longer, the
applicable preference period) and one day following payment in full of
the
Certificates and any Notes. This provision will survive the termination
of this
Agreement.
|
(n)
|
Supplemental
Interest Trust Trustee Liability Limitations.
It
is expressly understood and agreed by the parties hereto that
(a) this
Agreement is executed by Xxxxx Fargo Bank, N.A. (“Xxxxx”) not in its
individual capacity, but solely as Supplemental Interest Trust
Trustee
under the Pooling and Servicing Agreement in the exercise of
the powers
and authority conferred and invested in it thereunder; (b) Xxxxx
has been
directed pursuant to the Pooling and Servicing Agreement to enter
into
this Agreement and to perform its obligations hereunder; (c)
each of the
representations, undertakings and agreements herein made on behalf
of the
Supplemental Interest Trust is made and intended not as personal
representations of Xxxxx but is made and intended for the purpose
of
binding only the Supplemental Interest Trust; and (d) under no
circumstances shall Xxxxx
in its individual capacity be personally liable for any payments
hereunder
or for the breach or failure of any obligation, representation,
warranty
or covenant made or undertaken under this
Agreement.
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|
(o)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) in any respect,
the
remaining terms, provisions, covenants, and conditions hereof
shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long
as this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement
will not
substantially impair the respective benefits or expectations
of the
parties; provided, however, that this severability provision
shall not be
applicable if any provision of Section 2, 5, 6, or 13 (or any
definition
or provision in Section 14 to the extent it relates to, or is
used in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace
any
invalid or unenforceable term, provision, covenant or condition with a
valid or
enforceable term, provision, covenant or condition, the economic effect
of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(p)
|
Agent
for Party B. Party
A acknowledges that Party B has appointed the Supplemental Interest
Trust
Trustee and
the Trust Administrator as its agents under the Pooling and Servicing
Agreement and the Swap Administration Agreement to carry out
certain
functions on behalf of Party B, and that the Supplemental Interest
Trust
Trustee and the Trust Administrator shall be entitled to give
notices and
to perform and satisfy the obligations of Party B hereunder on
behalf of
Party B.
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|
(q)
|
[Reserved].
|
|
(r)
|
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at
any time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates, waives any further notice of such monitoring
or
recording, and agrees to notify such personnel of such monitoring
or
recording.
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|
(s)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in
respect of
any suit, action or proceeding relating to this Agreement or
any Credit
Support Document.
|
|
(t)
|
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency - Crossborder) as published and copyrighted in
1992 by the
International Swaps and Derivatives Association,
Inc.
|
|
(u)
|
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party
B of other
payment instructions, any and all amounts payable by Party A
to Party B
under this Agreement shall be paid to the account specified in
Item 4 of
this Confirmation, below.
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|
(v)
|
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement that it is entering into the Agreement and the
Transaction
as principal and not as agent of any person. The Supplemental
Interest
Trust Trustee represents
to Party A on the date on which Party
B enters
into this Agreement that the Supplemental Interest Trust Trustee
is
executing the Agreement not in its individual capacity, but solely
as
Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest
Trust.
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|
(w)
|
Substantial
financial transactions.
Each party hereto is hereby advised and acknowledges as of the
date hereof
that the other party has engaged in (or refrained from engaging
in)
substantial financial transactions and has taken (or refrained
from
taking) other material actions in reliance upon the entry by
the parties
into the Transaction being entered into on the terms and conditions
set
forth herein and in the Pooling and Servicing Agreement relating
to such
Transaction, as applicable. This paragraph shall be deemed repeated
on the
trade date of each Transaction.
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|
(x)
|
[Reserved].
|
|
(y)
|
[Reserved].
|
(z)
Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold, the Moody’s First Trigger
Ratings Threshold, and the Fitch Approved Ratings Threshold.
“Approved
Replacement” means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b), (c) and (d)of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future payment
obligations and obligations to post collateral of Party A or an Eligible
Replacement to Party B under this Agreement that is provided by an Eligible
Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee are subject
to
the Rating Agency Condition with respect to S&P and Fitch.
“Eligible
Guarantor” means
an
entity that (A) has credit ratings from S&P at least equal to the S&P
Approved Ratings Threshold and from Fitch at least equal to the Fitch Approved
Ratings Threshold and (B) has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold, provided, for the avoidance of doubt,
that an Eligible Guarantee of an Eligible Guarantor with credit ratings
below
the Moody’s First Trigger Ratings Threshold will not cause a Collateral Event
(as defined in the Credit Support Annex) not to occur or continue with
respect
to Moody’s.
“Eligible
Replacement”
means an
entity (A) (i) (a) that has credit ratings from S&P at least equal to the
S&P Approved Ratings Threshold and from Fitch at least equal to the Fitch
Approved Ratings Threshold, and (b) has credit ratings from Moody’s at least
equal to the Moody’s Second Trigger Ratings Threshold, provided, for the
avoidance of doubt, that an Eligible Replacement with credit ratings below
the
Moody’s First Trigger Ratings Threshold will not cause a Collateral Event (as
defined in the Credit Support Annex) not to occur or continue with respect
to
Moody’s, or (ii) the present and future obligations (for the avoidance of doubt,
not limited to payment obligations) of which entity to Party B under this
Agreement are guaranteed pursuant to an Eligible Guarantee and (B) that
has
executed an Item 1115 Agreement with Depositor and Sponsor.
“Estimated
Swap Termination Payment”
means,
with respect to an Early Termination Date, an amount determined by Party
A in
good faith and in a commercially reasonable manner as the maximum payment
that
could be owed by Party B to Party A in respect of such Early Termination
Date
pursuant to Section 6(e) of the ISDA Master Agreement, taking into account
then
current market conditions.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or to
Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such
Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as
the
counterparty to this Agreement or enter a Replacement Transaction that
will
become legally binding upon such Eligible Replacement upon acceptance by
Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Fitch”
means
Fitch Ratings Ltd., or any successor thereto.
“Fitch
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
Fitch of “A” and a short-term unsecured and unsubordinated debt rating from
Fitch of “F1”.
“Fitch
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
Fitch of “BBB-”.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Event”
means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s First Trigger Ratings Threshold.
“Moody’s
First Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Xxxxx’x of
“A1”.
“Xxxxx’x
Second Trigger Ratings Event”
means
that no Relevant Entity has credit ratings from Xxxxx’x at least equal to the
Xxxxx’x Second Trigger Ratings Threshold.
“Xxxxx’x
Second Trigger Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Xxxxx’x, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Xxxxx’x of “A3” and a
short-term unsecured and unsubordinated debt rating from Xxxxx’x of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Xxxxx’x, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Xxxxx’x of “A3”.
“Permitted
Transfer” means
a
transfer by novation by Party A pursuant to Section 6(b)(ii), Part 5(d),
Part
5(b)(v) Part 5(e), or the second sentence of Section 7 (as amended herein)
to a
transferee (the “Transferee”)
of all,
but not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with
respect to which transfer each of the following conditions is
satisfied:
(a) the
Transferee is an Eligible Replacement; (b) Party A and the Transferee are
both
“dealers in notional principal contracts” within the meaning of Treasury
regulations section 1.1001-4 (in each case as certified by such entity);
(c) as
of the date of such transfer the Transferee would not be required to withhold
or
deduct on account of Tax from any payments under this Agreement or would
be
required to gross up for such Tax under Section 2(d)(i)(4); (d) an Event
of
Default or Termination Event would not occur as a result of such transfer;
(e)
pursuant to a written instrument (the “Transfer
Agreement”),
the
Transferee acquires and assumes all rights and obligations of Party A under
the
Agreement and the relevant Transaction; (f) Party B shall have determined,
in
its sole discretion, acting in a commercially reasonable manner, that such
Transfer Agreement is effective to transfer to the Transferee all, but
not less
than all, of Party A’s rights and obligations under the Agreement and all
relevant Transactions; (g) Party A will be responsible for any costs or
expenses
incurred in connection with such transfer (including any replacement cost
of
entering into a replacement transaction); (h) either (A) Xxxxx’x has been given
prior written notice of such transfer and the Rating Agency Condition is
satisfied with respect to S&P and Fitch or (B) each Swap Rating Agency has
been given prior written notice of such transfer and such transfer is in
connection with the assignment and assumption of this Agreement without
modification of its terms, other than party names, dates relevant to the
effective date of such transfer, tax representations (provided that the
representations in Part 2(a)(i) are not modified) and any other representations
regarding the status of the substitute counterparty of the type included
in Part
5(b)(iv), Part 5(v)(i)(2) or Part 5(v)(ii), notice information and account
details; and (i) such transfer otherwise complies with the terms of the
Pooling
and Servicing Agreement.
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder
and
each Swap Rating Agency specified in connection with such proposed act
or
omission, that the party acting or failing to act must consult with each
of the
specified Swap Rating Agencies and receive from each such Swap Rating Agency
a
prior written confirmation that the proposed action or inaction would not
cause
a downgrade or withdrawal of the then-current rating of any Certificates
or
Notes.
“Relevant
Entity” means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are
not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the Required
Ratings Threshold. For purposes of determining whether a Required Ratings
Downgrade Event has occurred, each Relevant Entity shall provide its credit
ratings to Party B in writing, upon request of Party B.
“Required
Ratings Threshold” means
each of the S&P Required Ratings Threshold, the Xxxxx’x Second Trigger
Ratings Threshold and the Fitch Required Ratings Threshold.
“S&P”
means
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
“S&P/Fitch
Approved Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the S&P
Approved Ratings Threshold and the Fitch Approved Ratings
Threshold.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating from S&P of
“A+”.
“S&P/Fitch
Required Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the S&P
Required Ratings Threshold and the Fitch Required Ratings
Threshold.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
or
counterparty rating from S&P of “BBB-”.
“Swap
Rating Agencies”
means,
with respect to any date of determination, each of S&P, Xxxxx’x and Fitch,
to the extent that each such rating agency is then providing a rating for
any of
the Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series
2007-1
(the “Certificates”) or any notes backed by the Certificates (the
“Notes”).
[Remainder
of this page intentionally left blank.]
4.
Account
Details and Settlement Information:
|
Payments
to Party A:
|
|
|
Citibank,
N.A., New York
|
|
|
ABA
Number: 000-0000-00, for the account of Bear, Xxxxxxx Securities
Corp.
|
|
|
Account
Number: 0925-3186, for further credit to Bear Xxxxxxx Financial
Products
Inc.
|
|
|
Sub-account
Number: 102-04654-1-3
|
|
|
Attention:
Derivatives Department
|
|
|
Payments
to Party B:
|
|
|
Xxxxx
Fargo Bank, NA
|
|
|
San
Francisco, CA
|
|
|
ABA#
000-000-000
|
|
|
Acct#
0000000000
|
|
|
Acct
Name: SAS Clearing
|
|
|
FFC:
50992402
|
|
NEITHER
THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF THE
BEAR
XXXXXXX COMPANIES INC. OTHER THAN PARTY A IS AN OBLIGOR OR A CREDIT SUPPORT
PROVIDER ON THIS AGREEMENT.
This
Agreement may be executed in several counterparts, each of which shall
be deemed
an original but all of which together shall constitute one and the same
instrument.
Party
B
hereby agrees to check this Confirmation and to confirm that the foregoing
correctly sets forth the terms of the Transaction by signing in the space
provided below and returning to Party A a facsimile of the fully-executed
Confirmation to 000-000-0000. For inquiries regarding U.S. Transactions,
please
contact Derivatives Documentation by telephone at 000-000-0000. For all
other
inquiries please contact Derivatives Documentation by telephone at
000-0-000-0000. Originals will be provided for your execution upon your
request.
SCHEDULE
I
(where
for the purposes of (i) determining Floating Amounts, all such dates subject
to
adjustment in
accordance
with the Business Day Convention and (ii) determining Fixed Amounts, all
such
dates subject to
No
Adjustment.)
|
From
and including
|
To
but excluding
|
Notional
Amount
(USD)
|
||
|
Effective
Date
|
12/25/07
|
2,022,196.49
|
||
|
12/25/07
|
01/25/08
|
1,954,307.21
|
||
|
01/25/08
|
02/25/08
|
1,886,367.09
|
||
|
02/25/08
|
03/25/08
|
1,819,539.43
|
||
|
03/25/08
|
04/25/08
|
1,756,322.27
|
||
|
04/25/08
|
05/25/08
|
1,687,565.51
|
||
|
05/25/08
|
06/25/08
|
1,613,926.31
|
||
|
06/25/08
|
07/25/08
|
1,540,862.69
|
||
|
07/25/08
|
08/25/08
|
1,470,693.66
|
||
|
08/25/08
|
09/25/08
|
1,411,632.72
|
||
|
09/25/08
|
10/25/08
|
1,358,282.82
|
||
|
10/25/08
|
11/25/08
|
1,310,024.40
|
||
|
11/25/08
|
12/25/08
|
1,260,508.27
|
||
|
12/25/08
|
01/25/09
|
1,029,112.93
|
||
|
01/25/09
|
02/25/09
|
811,855.10
|
||
|
02/25/09
|
03/25/09
|
777,641.28
|
||
|
03/25/09
|
04/25/09
|
744,940.47
|
||
|
04/25/09
|
05/25/09
|
687,171.74
|
||
|
05/25/09
|
06/25/09
|
631,667.32
|
||
|
06/25/09
|
07/25/09
|
601,259.97
|
||
|
07/25/09
|
08/25/09
|
581,058.02
|
||
|
08/25/09
|
09/25/09
|
562,753.10
|
||
|
09/25/09
|
10/25/09
|
544,876.51
|
||
|
10/25/09
|
11/25/09
|
527,711.96
|
||
|
11/25/09
|
12/25/09
|
510,844.70
|
||
|
12/25/09
|
01/25/10
|
482,116.10
|
||
|
01/25/10
|
02/25/10
|
454,777.00
|
||
|
02/25/10
|
03/25/10
|
440,488.87
|
||
|
03/25/10
|
04/25/10
|
427,107.02
|
||
|
04/25/10
|
05/25/10
|
414,140.13
|
||
|
05/25/10
|
06/25/10
|
401,574.87
|
||
|
06/25/10
|
07/25/10
|
389,398.39
|
||
|
07/25/10
|
08/25/10
|
377,598.23
|
||
|
08/25/10
|
09/25/10
|
366,162.37
|
||
|
09/25/10
|
10/25/10
|
355,079.19
|
||
|
10/25/10
|
11/25/10
|
344,337.47
|
||
|
11/25/10
|
12/25/10
|
333,926.34
|
||
|
12/25/10
|
01/25/11
|
323,771.16
|
||
|
01/25/11
|
02/25/11
|
313,958.50
|
||
|
02/25/11
|
03/25/11
|
304,375.94
|
||
|
03/25/11
|
04/25/11
|
295,137.50
|
||
|
04/25/11
|
05/25/11
|
282,919.30
|
||
|
05/25/11
|
06/25/11
|
268,516.82
|
||
|
06/25/11
|
07/25/11
|
259,463.07
|
||
|
07/25/11
|
08/25/11
|
251,756.14
|
||
|
08/25/11
|
09/25/11
|
244,333.66
|
||
|
09/25/11
|
10/25/11
|
237,130.06
|
||
|
10/25/11
|
11/25/11
|
230,135.87
|
||
|
11/25/11
|
12/25/11
|
223,336.16
|
||
|
12/25/11
|
01/25/12
|
213,894.96
|
||
|
01/25/12
|
Termination
Date
|
205,470.68
|
Annex
A
Paragraph
13 of the Credit Support Annex
ANNEX
A
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of February 28, 2007 between
Bear
Xxxxxxx Financial Products Inc. (hereinafter referred to as “Party
A”
or
“Pledgor”)
and
Xxxxx
Fargo Bank, N.A., not in its individual capacity, but solely as Supplemental
Interest Trust Trustee on behalf of the Supplemental Interest Trust with
respect
to the Soundview Home Loan Trust 2007-1, Asset-Backed Certificates, Series
2007-1
(hereinafter
referred to as “Party
B”
or
“Secured
Party”)
For
the
avoidance of doubt, and notwithstanding anything to the contrary that
may be
contained in the Agreement, this Credit Support Annex shall relate solely
to the
Transaction documented in the Confirmation dated February 28, 2007, between
Party A and Party B, Reference Number FXNEC9255.
Paragraph
13. Elections and Variables.
| (a) |
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
| (b) |
Credit
Support Obligations.
|
| (i) |
Delivery
Amount, Return Amount and Credit Support
Amount.
|
| (A) |
“Delivery
Amount”
has the meaning specified in Paragraph 3(a) as amended (I)
by deleting the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Value as of that Valuation Date of all Posted
Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
|
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest
of
| (1) |
the
amount by which (a) the S&P/Fitch Credit Support Amount for such
Valuation Date exceeds (b) the S&P/Fitch Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party,
|
| (2) |
the
amount by which (a) the Xxxxx’x First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Xxxxx’x First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the
Secured Party,
and
|
| (3) |
the
amount by which (a) the Xxxxx’x Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Xxxxx’x Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by
the Secured
Party.
|
| (B) |
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by deleting
in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
|
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the
least of
|
(1)
|
the
amount by which (a) the S&P/Fitch Value as of such Valuation Date of
all Posted Credit Support held by the Secured Party exceeds
(b) the
S&P/Fitch Credit Support Amount for such Valuation Date,
|
|
(2)
|
the
amount by which (a) the Xxxxx’x First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party
exceeds (b)
the Xxxxx’x First Trigger Credit Support Amount for such Valuation Date,
and
|
|
(3)
|
the
amount by which (a) the Xxxxx’x Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party
exceeds (b)
the Xxxxx’x Second Trigger Credit Support Amount for such Valuation
Date.
|
| (C) |
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery Amount
or Return
Amount for any Valuation Date, reference shall be made to the
S&P/Fitch Credit Support Amount, the Xxxxx’x First Trigger Credit
Support Amount, or the Xxxxx’x Second Trigger Credit Support Amount, in
each case for such Valuation Date, as provided in Paragraphs
13(b)(i)(A)
and 13(b)(i)(B), above.
|
| (ii) |
Eligible
Collateral.
|
The
items
set forth on the schedule of Eligible Collateral attached as Schedule
A hereto
will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral described in (D) and
(E) of
column one of the Collateral Schedule to be denominated in USD).
| (iii) |
Other
Eligible Support.
|
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
| (iv) |
Threshold.
|
| (A) |
“Independent
Amount”
means zero with respect to Party A and Party
B.
|
| (B) |
“Threshold”
means, with respect to Party A and any Valuation Date, zero
if (i) a
Collateral Event has occurred and has been continuing (x) for
at least 30
days or (y) since this Annex was executed or (ii) a Required
Ratings
Downgrade Event has occurred and is continuing; otherwise,
infinity.
|
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
| (C) |
“Minimum
Transfer Amount” means
USD 100,000 with respect to Party A and Party B; provided,
however, that
if the aggregate Certificate Principal Balance of the Certificates
and the
aggregate principal balance of the Notes rated by S&P is at the time
of any transfer less than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000.
|
| (D) |
Rounding:
The Delivery Amount will be rounded up to the nearest integral
multiple of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 10,000.
|
| (c) |
Valuation
and Timing.
|
| (i) |
“Valuation
Agent”
means Party A.
|
| (ii) |
“Valuation
Date” means
each Local Business Day on which any of the S&P/Fitch Credit Support
Amount, the Xxxxx’x First Trigger Credit Support Amount or the Xxxxx’x
Second Trigger Credit Support Amount is greater than
zero.
|
| (iii) |
“Valuation
Time” means
the close of business in the city of the Valuation Agent on
the Local
Business Day immediately preceding the Valuation Date or date
of
calculation, as applicable; provided
that the calculations of Value and Exposure will be made as
of
approximately the same time on the same date. The Valuation
Agent will
notify each party (or the other party, if the Valuation Agent
is a party)
of its calculations not later than the Notification Time on
the applicable
Valuation Date (or in the case of Paragraph 6(d), the Local
Business Day
following the day on which such relevant calculations are
performed).”
|
| (iv) |
“Notification
Time” means
11:00 a.m., New York time, on a Local Business Day.
|
| (v) |
External
Calculations.
At
any time at which Party A (or, to the extent applicable, its
Credit
Support Provider) does not have a long-term unsubordinated
and unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall (at
its own expense) obtain external calculations of Party B’s Exposure from
at least two Reference Market-makers on the last Local Business
Day of
each calendar month. Any determination of the S&P Credit Support
Amount shall be based on the greatest of Party B’s Exposure determined by
the Valuation Agent and such Reference Market-makers. Such
external
calculation may not be obtained from the same Reference Market-maker
more
than four times in any 12-month
period.
|
| (vi) |
Notice
to S&P.
At
any time at which Party A (or, to the extent applicable, its
Credit
Support Provider) does not have a long-term unsubordinated
and unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall
provide to S&P not later than the Notification Time on the Local
Business Day following each Valuation Date its calculations
of Party B’s
Exposure and the S&P Value of any Eligible Credit Support or Posted
Credit Support for that Valuation Date. The Valuation Agent
shall also
provide to S&P any external marks of Party B’s
Exposure.
|
| (d) |
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party
if the
Termination Event occurs with respect to that party): With
respect to
Party A and Party B: None.
|
| (e) |
Substitution.
|
| (i) |
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
|
| (ii) |
Consent.
If
specified here as applicable, then the Pledgor must obtain
the Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
|
| (f) |
Dispute
Resolution.
|
| (i) |
“Resolution
Time”
means 1:00 p.m. New York time on the Local Business Day following
the date
on which the notice of the dispute is given under Paragraph
5.
|
| (ii) |
Value.
Notwithstanding anything to the contrary in Paragraph 12, for
the purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P/Fitch Value, Xxxxx’x First
Trigger Value, and Xxxxx’x Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
|
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
product of (1)(x) the bid-side quotation at the Valuation Time for such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on a
national
securities exchange, the arithmetic mean of the bid-side quotations for
such
securities quoted at the Valuation Time by any three principal market
makers for
such securities selected by the Valuation Agent, provided that if only
two
bid-side quotations are obtained, then the arithmetic mean of such two
bid-side
quotations will be used, and if only one bid-side quotation is obtained,
such
quotation shall be used, or (z) if no such bid price is listed or quoted
for
such date, the bid price listed or quoted (as the case may be) at the
Valuation
Time for the day next preceding such date on which such prices were available
and (2) the applicable Valuation Percentage for such Eligible
Collateral.
| (iii) |
Alternative.
The provisions of Paragraph 5 will
apply.
|
| (g) |
Holding
and Using Posted
Collateral.
|
| (i) |
Eligibility
to Hold Posted Collateral; Custodians. Party
B (or its Custodian) will be entitled to hold Posted Collateral
pursuant
to Paragraph 6(b), provided that the following conditions applicable
to it
are satisfied:
|
| (1) |
it
is not a Defaulting
Party.
|
| (2) |
Posted
Collateral consisting of Cash or certificated securities
that cannot be
paid or delivered by book-entry may be held only in any
state of the
United States which has adopted the Uniform Commercial
Code.
|
|
(3)
|
in
the case of any Custodian for Party B, such Custodian (or,
to the extent
applicable, its parent company or credit support provider)
shall then have
a short-term unsecured and unsubordinated debt rating from
S&P of at
least “A-1”.
|
Initially,
the Custodian
for
Party B is: The
Trust
Administrator
| (ii) |
Use
of Posted Collateral.
The provisions of Paragraph 6(c) will not apply to Party B,
and Party B
shall not have any right to use Posted Collateral or take any
action
specified in such Paragraph 6(c).
|
| (h) |
Distributions
and Interest Amount.
|
| (i) |
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral
in the form
of Cash that is held by Party B or its Custodian. Posted Collateral
in the
form of Cash shall be invested in such overnight (or redeemable
within two
Local Business Days of demand) Permitted Investments rated
at least (x)
AAAm or AAAm-G by S&P and (y) Prime-1 by Xxxxx’x or Aaa by Xxxxx’x, as
directed by Party A. Gains and losses incurred in respect of
any
investment of Posted Collateral in the form of Cash in Permitted
Investments
as
directed by Party A shall be for the account of Party
A.
|
| (ii) |
Amendment
of Paragraph 6(d)(i) - Distributions.
Clause (d)(i) of Paragraph 6 shall be amended and restated
to read in its
entirety as follows:
|
“(i)
Distributions. If Party B receives Distributions on a Local Business
Day, it
will not Transfer such Distributions to Party A but, rather, such Distributions
will constitute Posted Collateral and will be subject to the security
interest
granted under Paragraph 2. ”
| (iii) |
Amendment
of Paragraph 6(d)(ii) - Interest Amount.
Clause (d)(ii) of Paragraph 6 shall be amended and restated
to read in its
entirety as follows:
|
“(ii)
Interest
Amount.
In lieu
of any interest, dividends or other amounts paid with respect to Posted
Collateral in the form of Cash (all of which may be retained by the Secured
Party), the Secured Party will Transfer to the Pledgor on the 20th day
of each
calendar month (or if such day is not a Local Business Day, the next
Local
Business Day) the Interest Amount. Any Interest Amount or portion thereof
not
Transferred pursuant to this Paragraph will constitute Posted Collateral
in the
form of Cash and will be subject to the security interest granted under
Paragraph 2. For purposes of calculating the Interest Amount the amount
of
interest calculated for each day of the interest period shall be compounded
monthly.” Secured Party shall not be obligated to transfer any Interest Amount
unless and until it has received such amount.
| (i) |
Additional
Representation(s).
There are no additional representations by either
party.
|
| (j) |
Other
Eligible Support and Other Posted Support.
|
| (i) |
“Value”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (ii) |
“Transfer”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (k) |
Demands
and Notices.All
demands, specifications and notices under this Annex will be
made pursuant
to the Notices Section of this Agreement, except that any demand,
specification or notice shall be given to or made at the following
addresses, or at such other address as the relevant party may
from time to
time designate by giving notice (in accordance with the terms
of this
paragraph) to the other party:
|
If
to
Party A, at the address specified pursuant to the Notices Section of
this
Agreement.
If
to
Party B, at the address specified pursuant to the Notices Section of
this
Agreement.
If
to
Party B’s Custodian: at the address designated in writing from time to
time.
| (l) |
Address
for Transfers.
Each Transfer hereunder shall be made to the address specified
below or to
an address specified in writing from time to time by the party
to which
such Transfer will be made.
|
Party
A
account details for holding collateral:
Citibank,
N.A., New York
ABA
Number: 000-0000-00, for the account of Bear, Xxxxxxx Securities
Corp.
Account
Number: 0925-3186, for further credit to Bear Xxxxxxx Financial Products
Inc.
Sub-account
Number: 102-04654-1-3
Attention:
Derivatives Department
Party
B’s
Custodian account details for holding collateral:
Xxxxx
Fargo Bank, NA
San
Francisco, CA
ABA#
000-000-000
Acct#
0000000000
Acct
Name: SAS Clearing
FFC:
50992407
| (m) |
Other
Provisions.
|
| (i) |
Collateral
Account.
Party B shall open and maintain a segregated account, which
shall be an
Eligible Account, and hold, record and identify all Posted
Collateral in
such segregated account.
|
| (ii) |
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything
to the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant in
Paragraph 2,
the acknowledgement in the final sentence of Paragraph 8(a)
and the
representations in Paragraph 9.
|
| (iii) |
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P/Fitch Value, Xxxxx’x First Trigger
Value, Xxxxx’x Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended
by (A) deleting the words “a Value” and inserting in lieu thereof “an
S&P/Fitch Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second
Trigger Value” and (B) deleting the words “the Value” and inserting in
lieu thereof “S&P/Fitch Value, Xxxxx’x First Trigger Value, and
Xxxxx’x Second Trigger Value”. Paragraph 5 (flush language) is hereby
amended by deleting the word “Value” and inserting in lieu thereof
“S&P/Fitch Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second
Trigger Value”. Paragraph 5(i) (flush language) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P/Fitch
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value”.
Paragraph 5(i)(C) is hereby amended by deleting the word “the Value, if”
and inserting in lieu thereof “any one or more of the S&P/Fitch Value,
Xxxxx’x First Trigger Value, or Xxxxx’x Second Trigger Value, as may be”.
Paragraph 5(ii) is hereby amended by (1) deleting the first
instance of
the words “the Value” and inserting in lieu thereof “any one or more of
the S&P/Fitch Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second
Trigger Value” and (2) deleting the second instance of the words “the
Value” and inserting in lieu thereof “such disputed S&P/Fitch Value,
Xxxxx’x First Trigger Value, or Xxxxx’x Second Trigger Value”. Each of
Paragraph 8(b)(iv)(B) and Paragraph 11(a) is hereby amended
by deleting
the word “Value” and inserting in lieu thereof “least of the S&P/Fitch
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value”.
|
| (iv) |
Form
of Annex. Party
A and Party B hereby agree that the text of Paragraphs 1 through
12,
inclusive, of this Annex is intended to be the printed form
of ISDA Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to
New York Law
Only version) as
published and copyrighted in 1994 by the International Swaps
and
Derivatives Association, Inc.
|
| (v) |
Events
of Default.
Clause (iii) of Paragraph 7 shall not apply to Party
B.
|
| (vi) |
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the
Pledgor will
be responsible for, and will reimburse the Secured Party for,
all transfer
and other taxes and other costs involved in any Transfer of
Eligible
Collateral.
|
| (vii) |
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately
after “the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
|
| (ix) |
Additional
Definitions.
As used in this Annex:
|
“Collateral
Event” means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“DV01”
means,
with respect to a Transaction and any date of determination, the estimated
change in the Secured Party’s Transaction Exposure with respect to such
Transaction that would result from a one basis point change in the relevant
swap
curve on such date, as determined by the Valuation Agent in good faith
and in a
commercially reasonable manner. The Valuation Agent shall, upon request
of Party
B, provide to Party B a statement showing in reasonable detail such
calculation.
“Exposure”
has the
meaning specified in Paragraph 12, except that after the word “Agreement” the
words “(assuming, for this purpose only, that Part 1(f) of the Schedule is
deleted)” shall be inserted.
“Local
Business Day”
means,
for purposes of this Annex: any day on which (A) commercial banks are
open for
business (including dealings in foreign exchange and foreign currency
deposits)
in New York and the location of Party A, Party B and any Custodian, and
(B) in
relation to a Transfer of Eligible Collateral, any day on which the clearance
system agreed between the parties for the delivery of Eligible Collateral
is
open for acceptance and execution of settlement instructions (or in the
case of
a Transfer of Cash or other Eligible Collateral for which delivery is
contemplated by other means a day on which commercial banks are open
for
business (including dealings in foreign exchange and foreign deposits)
in New
York and the location of Party A, Party B and any Custodian.
“Xxxxx’x
First Trigger Credit Support Amount” means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (I) a Xxxxx’x First Trigger Ratings Event has
occurred and has been continuing (x) for at least 30 Local
Business Days
or (y) since this Annex was executed and (II) it is not the
case that a
Xxxxx’x Second Trigger Ratings Event has occurred and been continuing
for
at least 30 Local Business Days, an amount equal to the greater
of (a)
zero and (b) the sum of (i) the Secured Party’s Exposure for such
Valuation Date and (ii) the sum, for each Transaction to which
this Annex
relates, of the lesser of (x) the product of the Xxxxx’x First Trigger
DV01 Multiplier and DV01 for such Transaction and such Valuation
Date and
(y) the product of (i) Xxxxx’x
First Trigger Notional Amount Multiplier, (ii) Scale Factor
(as defined in
the related confirmation) for such Transaction, and (iii)
the Notional Amount for such Transaction for the Calculation
Period for
such Transaction (each as defined in the related Confirmation)
which
includes such Valuation Date, or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
| (II) |
the
Threshold for Party A such Valuation
Date.
|
“Xxxxx’x
First Trigger DV01 Multiplier”
means
15.
“Xxxxx’x
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Xxxxx’x
First Trigger Notional Amount Multiplier”
means
2%.
“Xxxxx’x
Second Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which it is the case that a Xxxxx’x Second Trigger
Ratings Event has occurred and been continuing for at least
30 Local
Business Days, an amount equal to the greatest of (a) zero,
(b) the
aggregate amount of the next payment due to be paid by Party
A under each
Transaction to which this Annex relates, and (c) the sum of
(x) the
Secured Party’s Exposure for such Valuation Date and (y) the sum, for each
Transaction to which this Annex relates,
of:
|
| (1) |
if
such Transaction is not a Transaction-Specific Hedge, the lesser
of (i)
the product of the Xxxxx’x Second Trigger DV01 Multiplier and DV01 for
such Transaction and such Valuation Date and (ii) the product
of (1) the
Xxxxx’x Second Trigger Notional Amount Multiplier, (2) Scale Factor
(as
defined in the related confirmation) for such Transaction,
and (3) the
Notional Amount for such Transaction for the Calculation Period
for such
Transaction (each as defined in the related Confirmation) which
includes
such Valuation Date];
or
|
| (2) |
if
such Transaction is a Transaction-Specific Hedge, the lesser
of (i) the
product of the Xxxxx’x Second Trigger Transaction-Specific Hedge DV01
Multiplier and DV01 for such Transaction and such Valuation
Date and (ii)
the product of (1) the Xxxxx’x Second Trigger Transaction-Specific Hedge
Notional Amount Multiplier, (2) Scale Factor (as defined in
the related
confirmation) for such Transaction and (3) the Notional Amount
for such
Transaction for the Calculation Period for such Transaction
(each as
defined in the related Confirmation) which includes such Valuation
Date;
or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
| (II) |
the
Threshold for Party A for such Valuation
Date.
|
“Xxxxx’x
Second Trigger DV01 Multiplier”
means
50.
“Xxxxx’x
Second Trigger Notional Amount Multiplier”
means
8%.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge DV01
Multiplier”
means
65.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier”
means
10%.
“Xxxxx’x
Second Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Remaining
Weighted Average Maturity” means,
with respect to a Transaction, the expected weighted average maturity
for such
Transaction as determined by the Valuation Agent.
“S&P/Fitch
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (i) an S&P/Fitch Approved Ratings
Downgrade Event has occurred and been continuing for at least
30 days or
(ii) a S&P/Fitch Required Ratings Downgrade Event has occurred and is
continuing, an amount equal to the sum of (1) 100.0% of the
Secured
Party’s Exposure for such Valuation Date and (2) the sum, for each
Transaction to which this Annex relates, of the product of
(i) the
Volatility Buffer for such Transaction, (ii) Scale Factor (as
defined in
the related confirmation) for such Transaction, and [(iii)]
the Notional
Amount of such Transaction for the Calculation Period of such
Transaction
(each as defined in the related Confirmation) which includes
such
Valuation Date, or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
| (II) |
the
Threshold for Party A for such Valuation
Date.
|
“S&P/Fitch
Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the
product of (A) the bid price obtained by the Valuation Agent for such
Eligible
Collateral and (B) the S&P Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
“Transaction
Exposure”
means,
for any Transaction, Exposure determined as if such Transaction were
the only
Transaction between the Secured Party and the Pledgor.
“Transaction-Specific
Hedge” means
any
Transaction that is (i) an interest rate swap in respect of which (x)
the
notional amount of the interest rate swap is “balance guaranteed” or (y) the
notional amount of the interest rate swap for any Calculation Period
(as defined
in the related Confirmation) otherwise is not a specific dollar amount
that is
fixed at the inception of the Transaction, (ii) an interest rate cap,
(iii) an
interest rate floor or (iv) an interest rate swaption.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P/Fitch Value, Xxxxx’x First Trigger
Value, or Xxxxx’x Second Trigger Value with respect to any Eligible Collateral
or Posted Collateral, the applicable S&P/Fitch Valuation Percentage, Xxxxx’x
First Trigger Valuation Percentage, or Xxxxx’x Second Trigger Valuation
Percentage for such Eligible Collateral or Posted Collateral, respectively,
in
each case as set forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P/Fitch Value, the related
Xxxxx’x First Trigger Value, and the related Xxxxx’x Second Trigger
Value.
“Volatility
Buffer”
means,
for any Transaction, the related percentage set forth in the following
table.
|
The
higher of the S&P short-term credit rating of (i) Party A and (ii) the
Credit Support Provider of Party A, if applicable
|
Remaining
Weighted Average Maturity
up
to 3 years
|
Remaining
Weighted Average Maturity
up
to 5 years
|
Remaining
Weighted Average Maturity
up
to 10 years
|
Remaining
Weighted Average Maturity
up
to 30 years
|
|
“A-2”
or higher
|
2.75%
|
3.25%
|
4.00%
|
4.75%
|
|
“A-3”
|
3.25%
|
4.00%
|
5.00%
|
6.25%
|
|
“BB+”
or
lower
|
3.50%
|
4.50% |
