POOLING AND SERVICING AGREEMENT among BAYVIEW FINANCIAL SECURITIES COMPANY, LLC, as Depositor WELLS FARGO BANK, N.A., as Master Servicer and U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity, but solely as Trustee BAYVIEW FINANCIAL...
among
BAYVIEW
FINANCIAL SECURITIES COMPANY, LLC,
as
Depositor
XXXXX
FARGO BANK, N.A.,
as
Master
Servicer
and
U.S.
BANK
NATIONAL ASSOCIATION,
not
in
its individual capacity, but solely as Trustee
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-B
Dated
as
of July 1, 2007
Table
of
Contents
Page
|
ARTICLE
I DEFINITIONS
|
18
|
|
Section
1.01. Certain Defined Terms.
|
18
|
|
Section
1.02. Provisions of General Application.
|
62
|
|
ARTICLE
II TRANSFER OF ASSETS
|
63
|
|
Section
2.01. Conveyance of Mortgage Loans.
|
63
|
|
Section
2.02. Acceptance and Acknowledgement by Trustee.
|
66
|
|
Section
2.03. Repurchase or Substitution of Mortgage Loans by the Seller
or the
Depositor.
|
67
|
|
Section
2.04. Grant of Security Interest; Intended
Characterization.
|
71
|
|
Section
2.05. Transmission of Mortgage Files.
|
73
|
|
Section
2.06. REMIC Matters.
|
74
|
|
ARTICLE
III REPRESENTATIONS, WARRANTIES AND COVENANTS
|
76
|
|
Section
3.01. Representations and Warranties of the Master
Servicer.
|
76
|
|
Section
3.02. Representations and Warranties of the Depositor.
|
77
|
|
Section
3.03. Representations and Warranties of the Depositor with respect
to the
Mortgage Notes.
|
79
|
|
ARTICLE
IV ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS
|
80
|
|
Section
4.01. Duties of the Master Servicer.
|
80
|
|
Section
4.02. Monitoring of Servicers’ Performance.
|
81
|
|
Section
4.03. Master Servicer Fidelity Bond and Master Servicer Errors
and
Omissions Insurance Policy.
|
82
|
|
Section
4.04. Master Servicer’s Financial Statements and Related
Information.
|
82
|
|
Section
4.05. Power to Act; Procedures.
|
82
|
|
Section
4.06. Servicing Agreements; Enforcement of Servicers’
Obligations.
|
83
|
|
Section
4.07. Collection Account.
|
84
|
|
Section
4.08. Application of Funds in the Collection Account.
|
85
|
|
Section
4.09. Determination of LIBOR.
|
87
|
|
Section
4.10. Termination of Servicing Agreements; Successor
Servicers.
|
87
|
|
Section
4.11. Master Servicer Liable for Enforcement.
|
88
|
|
Section
4.12. No Contractual Relationship Between Servicers and Master
Servicer or
Depositor.
|
88
|
|
Section
4.13. Assumption by Trustee.
|
88
|
|
Section
4.14. “Due-on-Sale” Clauses; “Due-on-Encumbrance” Clauses, Assumption
Agreements; Release of Collateral.
|
89
|
|
Section
4.15. Release of Mortgage Files.
|
90
|
|
Section
4.16. Documents, Records and Funds in Possession of Master Servicer
To Be
Held for Trustee.
|
91
|
i
|
Section
4.17. Removal of Master Servicer; Resignation of Master Servicer;
Term of
Servicing.
|
92
|
|
Section
4.18. Cross-Collateralized Mortgage Loans.
|
96
|
|
Section
4.19. Standard Hazard and Flood Insurance Policies.
|
96
|
|
Section
4.20. Presentment of Claims and Collection of Proceeds.
|
96
|
|
Section
4.21. Maintenance of the Primary Mortgage Insurance
Policies.
|
97
|
|
Section
4.22. Trustee To Retain Possession of Certain Insurance Policies
and
Documents.
|
97
|
|
Section
4.23. Realization Upon Defaulted Mortgage Loans.
|
98
|
|
Section
4.24. Compensation to the Master Servicer.
|
98
|
|
Section
4.25. REO Property.
|
98
|
|
Section
4.26. Delinquency Advances and Servicing Advances.
|
99
|
|
Section
4.27. Master Servicer Reports.
|
100
|
|
Section
4.28. Annual Statements as to Compliance; Annual Assessments of
Compliance.
|
100
|
|
Section
4.29. Annual Independent Public Accountants’ Servicing Statements;
Financial Statements.
|
102
|
|
Section
4.30. Merger or Consolidation.
|
103
|
|
Section
4.31. Reports filed with the Commission.
|
103
|
|
Section
4.32. Assignment or Delegation of Duties by the Master
Servicer.
|
108
|
|
Section
4.33. Limitation on Liability of the Master Servicer and
Others.
|
109
|
|
Section
4.34. Transfer of Servicing.
|
109
|
|
Section
4.35. Master Servicer Exchange Act Reporting Requirements.
|
111
|
|
ARTICLE
V THE CERTIFICATES
|
111
|
|
Section
5.01. The Certificates.
|
111
|
|
Section
5.02. Certificate Register; Registration of Transfer and Exchange
of
Certificates.
|
112
|
|
Section
5.03. [Reserved]
|
117
|
|
Section
5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
|
117
|
|
Section
5.05. Persons Deemed Owners.
|
117
|
|
Section
5.06. Access to List of Certificateholders’ Names and
Addresses.
|
118
|
|
Section
5.07. Maintenance of Office or Agency.
|
118
|
|
ARTICLE
VI DEPOSITS AND DISTRIBUTIONS
|
118
|
|
Section
6.01. Rights of the Holders.
|
118
|
|
Section
6.02. Establishment of Trust Accounts.
|
118
|
|
Section
6.03. Investment of Amounts.
|
123
|
|
Section
6.04. Collections.
|
123
|
|
Section
6.05. Flow of Funds.
|
124
|
|
Section
6.06. Disbursement of Funds.
|
135
|
|
Section
6.07. Allocation of Losses.
|
135
|
|
Section
6.08. Reports to Certificateholders.
|
136
|
|
Section
6.09. Presentation of Certificates.
|
138
|
|
Section
6.10. Compensating Interest.
|
138
|
ii
|
Section
6.11. Certain Provisions With Respect to the Cap
Agreement.
|
138
|
|
Section
6.12. The Reserve Fund.
|
139
|
|
Section
6.13. Substitution of Cap Providers.
|
140
|
|
Section
6.14. Supplemental Interest Trust.
|
141
|
|
Section
6.15. Rights of Swap Counterparty.
|
143
|
|
Section
6.16. Swap Termination Receipts.
|
144
|
|
ARTICLE
VII REMEDIES
|
145
|
|
Section
7.01. Limitation on Suits.
|
145
|
|
Section
7.02. Restoration of Rights and Remedies.
|
146
|
|
Section
7.03. Rights and Remedies Cumulative.
|
146
|
|
Section
7.04. Delay or Omission Not Waiver.
|
146
|
|
Section
7.05. Control by Certificateholders.
|
146
|
|
Section
7.06. Waiver of Past Defaults.
|
147
|
|
Section
7.07. Undertaking for Costs.
|
147
|
|
Section
7.08. Waiver of Stay or Extension Laws.
|
147
|
|
ARTICLE
VIII LIMITATION ON LIABILITY; INDEMNITIES
|
148
|
|
Section
8.01. Liabilities of Mortgagors.
|
148
|
|
Section
8.02. Liability of the Depositor.
|
148
|
|
Section
8.03. Relationship of Master Servicer.
|
148
|
|
Section
8.04. Indemnities of the Master Servicer.
|
148
|
|
ARTICLE
IX CONCERNING THE TRUSTEE
|
149
|
|
Section
9.01. Duties of Trustee.
|
149
|
|
Section
9.02. Certain Matters Affecting the Trustee.
|
150
|
|
Section
9.03. Trustee’s Disclaimer.
|
151
|
|
Section
9.04. Trustee May Own Certificates.
|
151
|
|
Section
9.05. Compensation and Indemnity.
|
151
|
|
Section
9.06. Replacement of Trustee.
|
152
|
|
Section
9.07. Successor Trustee by Merger.
|
153
|
|
Section
9.08. Appointment of Co-Trustee or Separate Trustee.
|
153
|
|
Section
9.09. Eligibility; Disqualification.
|
154
|
|
Section
9.10. Fees and Expenses.
|
155
|
|
Section
9.11. Representations and Warranties.
|
155
|
|
Section
9.12. Trustee Exchange Act Reporting Requirements.
|
156
|
|
ARTICLE
X MISCELLANEOUS
|
156
|
|
Section
10.01. Termination upon Liquidation or Purchase of all Mortgage
Loans.
|
156
|
|
Section
10.02. Optional Termination; Final Distribution on the
Certificates.
|
156
|
|
Section
10.03. Additional Termination Requirements.
|
158
|
|
Section
10.04. Beneficiaries.
|
159
|
|
Section
10.05. Amendment.
|
159
|
|
Section
10.06. Notices.
|
160
|
iii
|
Section
10.07. Merger and Integration.
|
162
|
|
Section
10.08. Headings.
|
163
|
|
Section
10.09. [Reserved]
|
163
|
|
Section
10.10. Severability of Provisions.
|
163
|
|
Section
10.11. No Proceedings.
|
163
|
|
Section
10.12. Governing Law; Consent to Jurisdiction; Waiver of Jury
Trial.
|
163
|
|
Section
10.13. Counterparts.
|
164
|
|
Section
10.14. Taxes.
|
164
|
|
Section
10.15. [Reserved]
|
166
|
|
Section
10.16. Provision of Information.
|
166
|
|
EXHIBITS
|
|
Exhibit
A
|
Form
of Certificates
|
|
Exhibit
B
|
Form
of Initial Certification
|
|
Exhibit
C
|
Form
of Interim Certification
|
|
Exhibit
D
|
Form
of Final Certification
|
|
Exhibit
E
|
Form
of Request for Release of Documents
|
|
Exhibit
F
|
Class
A-IO Schedule
|
|
Exhibit
G-1
|
Cap
Agreement
|
|
Exhibit
G-2
|
Swap
Agreement
|
|
Exhibit
H
|
List
of Servicing Agreements
|
|
Exhibit
I
|
[Reserved]
|
|
Exhibit
J
|
Non-Servicer
Obligated Mortgage Loans
|
|
Exhibit
K
|
Form
of Investment Letter for Qualified Institutional Buyers
|
|
Exhibit
L
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
M
|
Form
Certification to be Provided to Depositor by Master
Servicer
|
|
Exhibit
N
|
Form
of Residual Transferor Affidavit
|
|
Exhibit
O
|
Form
of Residual Transferee Affidavit
|
|
Exhibit
P-1
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
|
Exhibit
P-2
|
Additional
Form 8-K Disclosure
|
|
Exhibit
P-3
|
Additional
Form 10-D Disclosure
|
|
Exhibit
P-4
|
Additional
Form 10-K Disclosure
|
|
Exhibit
P-5
|
Additional
Disclosure Notification
|
|
SCHEDULES
|
|
Schedule
I
|
Mortgage
Loan Schedule (by Mortgage Pool)
|
|
Schedule
I-A
|
Simple
Interest Mortgage Loans
|
|
Schedule
I-B
|
Prepayment
Premium Conveyed Mortgage Loans
|
|
Schedule
I-C
|
Non-Monthly
Mortgage Loans
|
|
Schedule
I-D
|
Convertible
Mortgage Loans
|
|
Schedule
I-E
|
Holdback
Mortgage Loans
|
|
Schedule
I-F
|
[Reserved]
|
iv
|
Schedule
I-G
|
Stripped
Mortgage Loans
|
|
Schedule
I-H
|
60+
Delinquent Mortgage Loans
|
|
Schedule
I-I
|
Foreclosure
Restricted Loans
|
|
Schedule
II-A
|
2004-B
Re-sold Mortgage Loans
|
|
Schedule
II-B
|
2005-A
Re-sold Mortgage Loans
|
|
Schedule
II-C
|
2005-E
Re-sold Mortgage Loans
|
v
POOLING
AND SERVICING AGREEMENT, dated as of July 1, 2007 (this “Agreement” or “Pooling
and Servicing Agreement”), among Bayview Financial Securities Company, LLC, a
Delaware limited liability company, as depositor (“BFSC” or the “Depositor”),
Xxxxx Fargo Bank, N.A., a national banking association, its successors and
permitted assigns, as master servicer (the “Master Servicer”) and U.S. Bank
National Association, a national banking association, its successors and
permitted assigns, not in its individual capacity, but solely as trustee (the
“Trustee”).
WITNESSETH:
WHEREAS,
Bayview Financial, L.P., a Delaware limited partnership (the “Seller”), has
conveyed the Mortgage Loans to the Depositor pursuant to (except in the case
of
the Re-sold Mortgage Loans) the Purchase Agreement;
WHEREAS,
the Depositor will transfer such Mortgage Loans to the Trustee pursuant to
this
Agreement;
WHEREAS,
the 2004-B Revolving Trust will convey the 2004-B Re-sold Mortgage Loans and
assign its rights under the 2004-B Revolving Purchase Agreement relating to
such
Re-sold Mortgage Loans to BFPT II pursuant to the 2004-B Revolving Assignment
Agreement, BFPT II will convey the 2004-B Re-sold Mortgage Loans to the
Depositor pursuant to the BFPT II Assignment Agreement, and the Depositor will
transfer the 2004-B Re-sold Mortgage Loans to the Trustee pursuant to this
Agreement;
WHEREAS,
the 2005-A Revolving Trust will convey the 2005-A Re-sold Mortgage Loans and
assign its rights under the 2005-A Revolving Purchase Agreement relating to
such
Re-sold Mortgage Loans to BFPT II pursuant to the 2005-A Revolving Assignment
Agreement, BFPT II will convey the 2005-A Re-sold Mortgage Loans to the
Depositor pursuant to the BFPT II Assignment Agreement, and the Depositor will
transfer the 2005-A Re-sold Mortgage Loans to the Trustee pursuant to this
Agreement;
WHEREAS,
the 2005-E Revolving Trust will convey the 2005-E Re-sold Mortgage Loans and
assign its rights under the 2005-E Revolving Purchase Agreement relating to
such
Re-sold Mortgage Loans to BFPT II pursuant to the 2005-E Revolving Assignment
Agreement, BFPT II will convey the 2005-E Re-sold Mortgage Loans to the
Depositor pursuant to the BFPT II Assignment Agreement, and the Depositor will
transfer the 2005-E Re-sold Mortgage Loans to the Trustee pursuant to this
Agreement;
WHEREAS,
the Master Servicer is willing to act as the Master Servicer hereunder to
supervise the servicing of the Mortgage Loans, as provided herein, on behalf
of
the Trustee.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties agree as follows:
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. As provided herein, the Trustee shall elect
that
the Trust Fund (exclusive of (i) the Cap Agreement, (ii) the Reserve Fund,
(iii)
the right to receive and the obligation to pay Basis Risk Shortfalls and Unpaid
Basis Risk Shortfalls, (iv) the right to receive and the obligation to pay
AFC
Shortfalls, (v) the right to receive and the obligation to pay the Class A-IO
Termination Amount, (vi) the Swap Agreement, (vii) the Swap Account, (viii)
the
Supplemental Interest Trust and (ix) any Additional Collateral (collectively,
the “Excluded Trust Assets”)) be treated for federal income tax purposes as
comprising four real estate mortgage investment conduits under Section 860D
of
the Code (each a “REMIC” or, in the alternative “REMIC 1,” “REMIC 2,” “REMIC 3”
and “REMIC 4,” REMIC 4 also being referred to as the “Upper Tier REMIC”). Any
inconsistencies or ambiguities in this Agreement or in the administration of
this Agreement shall be resolved in a manner that preserves the validity of
such
REMIC elections.
Each
Certificate, other than the Class RL and Class R Certificates, represents
ownership of a regular interest in the Upper Tier REMIC for purposes of the
REMIC Provisions. In addition, for federal income tax purposes, each
Certificate, other than the Class RL and Class R Certificates and the Class
X
and Class P Certificates, represents (i) the right to receive payments with
respect to any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls and (ii)
the right to receive and the obligation to pay AFC Shortfalls. The Class R
Certificates represent ownership of the sole Class of residual interest in
each
of REMIC 2, REMIC 3 and the Upper Tier REMIC for purposes of the REMIC
Provisions. The Class RL Certificates represent ownership of the sole class
of
residual interest in REMIC 1.
The
Upper
Tier REMIC shall hold as its assets the uncertificated Interests in REMIC 3,
other than the R-3 Interest, and each such Interest is hereby designated as
a
regular interest in REMIC 3 for purposes of the REMIC Provisions. REMIC 3 shall
hold as its assets the uncertificated Interests in REMIC 2, other than the
R-2
Interest, and each such Interest is hereby designated as a regular interest
in
REMIC 2 for purposes of the REMIC Provisions. REMIC 2 shall hold as its assets
the uncertificated Interests in REMIC 1, other than the R-1 Interest, and each
such Interest is hereby designated as a regular interest in REMIC 1 for purposes
of the REMIC Provisions. REMIC 1 shall hold as its assets the property of the
Trust Fund other than the Interests in REMIC 1, REMIC 2 and REMIC 3 and the
Excluded Trust Assets.
The
startup day for each REMIC created hereby for purposes of the REMIC Provisions
is the Closing Date. In addition, for purposes of the REMIC Provisions, the
latest possible maturity date for each regular interest in each REMIC created
hereby is the Latest Possible Maturity Date.
REMIC
1:
The
following table sets forth the designations, principal balances, and interest
rates for each interest in REMIC 1, each of which (other than the R-1 Interest)
is hereby designated as a regular interest in REMIC 1 (the “REMIC 1 Regular
Interests”):
2
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
||
|
T1-Pool-1
|
(1)
|
(1)
|
||
|
T1-A
|
(2)
|
(3)
|
||
|
T1-F
|
$45,500,000.00
|
(4)
|
||
|
T1-V
|
$45,500,000.00
|
(5)
|
||
|
R-1
|
(6)
|
(6)
|
|
(1)
|
This
REMIC 1 Regular Interest shall have an initial principal balance
equal to
the aggregate principal balance of the Mortgage Loans in Pool 1.
The
interest rate for this Lower Tier Interest for each Distribution
Date (and
the related Accrual Period) is a per annum rate equal to the weighted
average of the Net Mortgage Rates of the Mortgage Loans in Pool 1
as of
the first day of the related Due Period for such Distribution Date,
minus
the product of (i) 12, (ii) the amount paid from the Trust Fund during
the
related Accrual Period to the extent such amounts were paid for ordinary
or routine expenses (not including any expenses relating to the Swap
Agreement) and were not taken into account in computing the Net Mortgage
Rate of any Mortgage Loan and (iii) a fraction, the numerator of
which is
the aggregate principal balance, as of the beginning of the related
Accrual Period, of the Mortgage Loans in Pool 1 and the denominator
of
which is the aggregate principal balance, as of the beginning of
the
related Accrual Period, of all the Mortgage
Loans.
|
|
(2)
|
This
REMIC 1 Regular Interest shall have an initial principal balance
equal to
the excess of the aggregate principal balance of the Mortgage Loans
in
Pool 2 as of the Cut-off Date over the sum of the initial principal
balances of the Class T1-F and Class T1-V
interests.
|
|
(3)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for the T1-A Interest is a per annum rate equal to the Pool 2 Net
WAC,
minus
the product of (i) 12, (ii) the amount paid from the Trust Fund during
the
related Accrual Period to the extent such amounts were paid for ordinary
or routine expenses (not including any expenses relating to the Swap
Agreement) and were not taken into account in computing the Net Mortgage
Rate of any Mortgage Loan and (iii) a fraction, the numerator of
which is
the aggregate principal balance, as of the beginning of the related
Accrual Period, of the Mortgage Loans in Pool 2 and the denominator
of
which is the aggregate principal balance, as of the beginning of
the
related Accrual Period, of all the Mortgage Loans (the “Pool 2 REMIC
WAC”).
|
|
(4)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for this REMIC 1 Regular Interest shall be the lesser
of
(i) 10.812%
and (ii) the product of (a) the Pool 2 REMIC WAC and (b) 2.
|
|
(5)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for this REMIC 1 Regular Interest shall be the excess, if any, of
(i) the
product of (a) the Pool 2 REMIC WAC and (b) 2, over (ii)
10.812%.
|
|
(6)
|
The
R-1 Interest shall not have a principal amount and shall not bear
interest. The R-1 Interest is hereby designated as the sole class
of
residual interest in REMIC 1. The Class RL Certificates shall represent
ownership of the R-1 Interest.
|
On
each
Distribution Date, the Trustee shall first pay or charge as an expense of
REMIC 1 all expenses of the Trust for such Distribution Date other than any
expenses relating to the Swap Agreement.
On
each
Distribution Date, interest distributable in respect of the Mortgage Loans
for
such Distribution Date shall be distributed to the Interests in REMIC 1 at
the
rates shown above.
3
On
each
Distribution Date, all Realized Losses and all payments of principal in respect
of the Mortgage Loans in Pool 1 shall be allocated to the Class T1-Pool-1
Interest until the principal balance of such Interest is reduced to
zero.
On
each
Distribution Date, all Realized Losses and all payments of principal in respect
of the Mortgage Loans in Pool 2 shall be allocated to the Class T1-A Interest
until the principal balance of such Interest is reduced to zero, and then to
the
Class T1-F and Class T1-V Interests, in equal amounts to each such Class, until
the principal balance of each such Interest is reduced to zero.
On
each
Distribution Date, all prepayment premiums or penalties or yield maintenance
payments received with respect to Pool 1 during the related Prepayment Period
(to the extent payable to the Class P Certificates) shall be distributed to
the
T1-Pool-1 Interest. On each Distribution Date, all prepayment premiums or
penalties or yield maintenance payments received with respect to Pool 2 during
the related Prepayment Period (to the extent payable to the Class P
Certificates) shall be distributed to the T1-F Interest.
REMIC
2:
The
following table sets forth the designations, principal balances, and interest
rates for each interest in REMIC 2, each of which (other than the R-2 Interest)
is hereby designated as a regular interest in REMIC 2 (the “REMIC 2 Regular
Interests”):
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|
T2-1A-IO-1
|
$
1,285,331.69
|
(1)
|
||
|
T2-2A-IO-1
|
$
1,220,445.06
|
(1)
|
||
|
T2-3A-IO-1
|
$
1,159,068.49
|
(1)
|
||
|
T2-4A-IO-1
|
$
1,100,642.08
|
(1)
|
||
|
T2-5A-IO-1
|
$
1,045,160.24
|
(1)
|
||
|
T2-6A-IO-1
|
$
992,725.05
|
(1)
|
||
|
T2-7A-IO-1
|
$
943,332.21
|
(1)
|
||
|
T2-8A-IO-1
|
$
895,747.27
|
(1)
|
||
|
T2-9A-IO-1
|
$
850,578.06
|
(1)
|
||
|
T2-10A-IO-1
|
$
807,722.07
|
(1)
|
||
|
T2-11A-IO-1
|
$
767,018.10
|
(1)
|
||
|
T2-12A-IO-1
|
$
728,344.59
|
(1)
|
||
|
T2-13A-IO-1
|
$
780,720.27
|
(1)
|
||
|
T2-14A-IO-1
|
$
913,552.55
|
(1)
|
||
|
T2-15A-IO-1
|
$
848,839.70
|
(1)
|
||
|
T2-16A-IO-1
|
$
788,703.13
|
(1)
|
||
|
T2-17A-IO-1
|
$
732,819.71
|
(1)
|
||
|
T2-18A-IO-1
|
$
680,889.02
|
(1)
|
||
|
T2-19A-IO-1
|
$
632,632.00
|
(1)
|
||
|
T2-20A-IO-1
|
$
587,789.11
|
(1)
|
||
|
T2-21A-IO-1
|
$
546,119.15
|
(1)
|
4
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|
T2-22A-IO-1
|
$
507,398.02
|
(1)
|
||
|
T2-23A-IO-1
|
$
471,417.36
|
(1)
|
||
|
T2-24A-IO-1
|
$
437,983.51
|
(1)
|
||
|
T2-25A-IO-1
|
$
406,916.46
|
(1)
|
||
|
T2-26A-IO-1
|
$
378,048.98
|
(1)
|
||
|
T2-27A-IO-1
|
$
351,225.60
|
(1)
|
||
|
T2-28A-IO-1
|
$
326,301.76
|
(1)
|
||
|
T2-29A-IO-1
|
$
303,143.19
|
(1)
|
||
|
T2-30A-IO-1
|
$
3,957,954.86
|
(1)
|
||
|
T2-Pool-1
|
(2)
|
(1)
|
||
|
T2-IO-Swap
|
(3)
|
(3)
|
||
|
T2-1A-IO-2
|
$
2,750,025.27
|
(4)
|
||
|
T2-2A-IO-2
|
$
2,611,197.40
|
(4)
|
||
|
T2-3A-IO-2
|
$
3,475,019.14
|
(4)
|
||
|
T2-4A-IO-2
|
$
364,594.21
|
(4)
|
||
|
T2-5A-IO-2
|
$
4,316,914.16
|
(4)
|
||
|
T2-6A-IO-2
|
$
3,661,923.17
|
(4)
|
||
|
T2-7A-IO-2
|
$
1,927,834.71
|
(4)
|
||
|
T2-8A-IO-2
|
$
1,192,753.91
|
(4)
|
||
|
T2-9A-IO-2
|
$
1,819,850.21
|
(4)
|
||
|
T2-10A-IO-2
|
$
1,637,690.70
|
(4)
|
||
|
T2-11A-IO-2
|
$
1,279,200.96
|
(4)
|
||
|
T2-12A-IO-2
|
$
201,317.63
|
(4)
|
||
|
T2-13A-IO-2
|
$
1,479,638.35
|
(4)
|
||
|
T2-14A-IO-2
|
$
1,404,998.73
|
(4)
|
||
|
T2-15A-IO-2
|
$
1,334,280.85
|
(4)
|
||
|
T2-16A-IO-2
|
$
633,609.09
|
(4)
|
||
|
T2-17A-IO-2
|
$
1,836,180.18
|
(4)
|
||
|
T2-18A-IO-2
|
$
1,142,243.75
|
(4)
|
||
|
T2-19A-IO-2
|
$
1,084,518.85
|
(4)
|
||
|
T2-20A-IO-2
|
$
396,458.28
|
(4)
|
||
|
T2-21A-IO-2
|
$
1,784,233.62
|
(4)
|
||
|
T2-22A-IO-2
|
$
1,101,673.16
|
(4)
|
||
|
T2-23A-IO-2
|
$
1,158,634.81
|
(4)
|
||
|
T2-24A-IO-2
|
$
1,252,560.24
|
(4)
|
||
|
T2-25A-IO-2
|
$
1,210,352.98
|
(4)
|
||
|
T2-26A-IO-2
|
$
1,130,463.53
|
(4)
|
||
|
T2-27A-IO-2
|
$
748,108.14
|
(4)
|
||
|
T2-28A-IO-2
|
$
1,145,657.45
|
(4)
|
||
|
T2-29A-IO-2
|
$
630,492.66
|
(4)
|
||
|
T2-30A-IO-2
|
$
9,735,939.00
|
(4)
|
||
|
T2-Pool-2
|
(5)
|
(4)
|
||
|
R-2
|
(6)
|
(6)
|
5
|
(1)
|
The
interest rate for this REMIC 2 Regular Interest for each Distribution
Date
(and the related Accrual Period) is equal to the interest rate on
the
T1-Pool-1 Interest in REMIC 1.
|
|
(2)
|
This
interest shall have an initial principal balance equal to the excess
of
(a) the aggregate Principal Balance of each Mortgage Loan in Pool
1 as of
the Cut-off Date over (b) the sum of the initial principal balances
of the
interests in REMIC 2 containing the letters “A-IO-1” in their class
designations.
|
|
(3)
|
The
T2-IO-Swap Interest is an interest only class that does not have
a
principal balance. For each Distribution Date commencing in August
2007
through the Distribution Date in July 2011, the T2-IO-Swap Interest
shall
be entitled to interest accrued on the T1-F Interest at a per annum
rate
equal to the excess, if any, of (i) the interest rate for the T1-F
Interest for such Distribution Date over (ii) Swap LIBOR for such
Distribution Date.
|
|
(4)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these REMIC 2 Regular Interest is a per annum rate equal
to
the weighted average of the interest rates on the T1-A, T1-F and
T1-V
Interests for such Distribution Date, provided,
however, that
(i) for any Distribution Date on which the T2-IO-Swap Interest is
entitled
to a portion of the interest accruals on the T1-F Interest, as described
in footnote three above, such weighted average shall be computed
by first
subjecting the rate on such REMIC 1 Regular Interest to a cap equal
to
Swap LIBOR for such Distribution
Date.
|
|
(5)
|
This
Interest shall have an initial principal balance equal to the excess
of
(a) the aggregate Principal Balance of each Mortgage Loan in Pool
2 as of
the Cut-off Date over (b) the sum of the initial principal balances
of the
Interests in REMIC 2 containing the letters “A-IO-2” in their class
designations.
|
|
(6)
|
The
R-2 Interest shall not have a principal amount and shall not bear
interest. The R-2 interest is hereby designated as the sole class
of
residual interest in REMIC 2.
|
On
each
Distribution Date, interest distributable in respect of the REMIC 1 Interests
for such Distribution Date shall be distributed to the Interests in REMIC 2
at
the rates shown above.
On
each
Distribution Date, all Realized Losses and all payments of principal in respect
of the Mortgage Loans in Pool 1 shall be allocated to the T2-Pool-1 Interest
until the principal balance of such Interest is reduced to zero, and then to
the
Interests having the letters “A-IO-1” in their Class designation in descending
order of their numerical designation until the principal balance of each such
Interest is reduced to zero.
On
each
Distribution Date, all Realized Losses and all payments of principal in respect
of the Mortgage Loans in Pool 2 shall be allocated to the T2-Pool-2 Interest
until the principal balance of such Interest is reduced to zero, and then to
the
Interests having the letters “A-IO-2” in their Class designation in descending
order of their numerical designation until the principal balance of each such
Interest is reduced to zero.
On
each
Distribution Date, all prepayment premiums or penalties or yield maintenance
payments received with respect to Pool 1 during the related Prepayment Period
(to the extent payable to the Class P Certificates) shall be distributed to
the
T2-30A-IO-1 Interest. On each Distribution Date, all prepayment premiums or
penalties or yield maintenance payments received with respect to Pool 2 during
the related Prepayment Period (to the extent payable to the Class P
Certificates) shall be distributed to the T2-30A-IO-2 Interest.
6
REMIC
3:
The
following table sets forth the designations, principal balances, and interest
rates for each interest in REMIC 3, each of which (other than the R-3 Interest)
is hereby designated as a regular interest in REMIC 3 (the “REMIC 3 Regular
Interests”):
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
Corresponding
Class
of
Certificates or
Component
|
|
T3-1-A1
|
¼
Corresponding Class balance
|
(1)
|
1-A1
|
|
T3-1-A2
|
¼
Corresponding Class balance
|
(1)
|
1-A2
|
|
T3-1-A3
|
¼
Corresponding Class balance
|
(1)
|
1-A3
|
|
T3-1-A4
|
¼
Corresponding Class balance
|
(1)
|
1-A4
|
|
T3-1-A5
|
¼
Corresponding Class balance
|
(1)
|
1-A5
|
|
T3-2-A1
|
¼
Corresponding Class balance
|
(3)
|
2-A1
|
|
T3-2-A2
|
¼
Corresponding Class balance
|
(3)
|
2-A2
|
|
T3-2-A3
|
¼
Corresponding Class balance
|
(3)
|
2-A3
|
|
T3-2-A4
|
¼
Corresponding Class balance
|
(3)
|
2-A4
|
|
T3-M-1
|
¼
Corresponding Class balance
|
(5)
|
M-1
|
|
T3-M-2
|
¼
Corresponding Class balance
|
(5)
|
M-2
|
|
T3-M-3
|
¼
Corresponding Class balance
|
(5)
|
M-3
|
|
T3-M-4
|
¼
Corresponding Class balance
|
(5)
|
M-4
|
|
T3-B-1
|
¼
Corresponding Class balance
|
(5)
|
B-1
|
|
T3-B-2
|
¼
Corresponding Class balance
|
(5)
|
B-2
|
|
T3-PSA-1
|
(8)
|
(1)
|
N/A
|
|
T3-Pool-1
|
(9)
|
(1)
|
N/A
|
|
T3-PSA-2
|
(10)
|
(3)
|
N/A
|
|
T3-Pool-2
|
(11)
|
(3)
|
N/A
|
|
T3-Q
|
(12)
|
(5)
|
X
|
|
T3-1A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-2A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-3A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-4A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-5A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-6A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-7A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-8A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-9A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-10A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-11A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-12A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-13A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-14A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-15A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-16A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-17A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
7
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
Corresponding
Class
of
Certificates or
Component
|
|
T3-18A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-19A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-20A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-21A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-22A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-23A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-24A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-25A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-26A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-27A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-28A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-29A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-30A-IO-1
|
(2)
|
(2)
|
A-IO(1)
|
|
T3-1A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-2A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-3A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-4A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-5A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-6A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-7A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-8A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-9A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-10A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-11A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-12A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-13A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-14A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-15A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-16A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-17A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-18A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-19A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-20A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-21A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-22A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-23A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-24A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-25A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-26A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-27A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-28A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-29A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
8
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
Corresponding
Class
of
Certificates or
Component
|
|
T3-30A-IO-2
|
(4)
|
(4)
|
A-IO(2)
|
|
T3-IO-Swap
|
(6)
|
(6)
|
N/A
|
|
R-3
|
(7)
|
(7)
|
R
|
|
(1)
|
This
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these REMIC 3 Regular Interests is a
per annum
rate equal to the greater of (i) 0.00% and (ii) the weighted average
of the interest rates on each REMIC 2 Interest having an “A-IO-1” in its
designation and the T2-Pool-1 Interest, computed after reducing the
rate
payable on each such REMIC 2 Interest having an “A-IO-1” in its Class
designation by the Class A-IO(1) Component Interest Rate for such
Distribution Date, for any Distribution Date on which interest is
payable
on its Corresponding REMIC 3 A-IO-1 Interest (as described in footnote
(2)
below).
|
|
(2)
|
Each
of these REMIC 3 Interests is an interest-only Interest and does
not have
a principal balance. For each Distribution Date on the chart below,
the
REMIC 3 Interest corresponding to such Distribution Date shall be
entitled
to interest payable on the REMIC 2 Interest corresponding to such
Distribution Date at a rate equal to the lesser
of
(i) the applicable “A-IO(1) Component Interest Rate” for such date set
forth on Exhibit F hereto and (ii) the interest rate of the REMIC
2
Interest corresponding to such distribution date. Each such REMIC
3
Interest shall be entitled to payments only for the Distribution
Date to
which it corresponds on the chart below.
|
|
Distribution
Date
occurring
in
|
Corresponding
REMIC 3
Interest
|
Corresponding
REMIC 2
Interest
|
|
August
2007
|
T3-1A-IO-1
|
T2-1A-IO-1
|
||
|
September
2007
|
T3-2A-IO-1
|
T2-2A-IO-1
|
||
|
October
2007
|
T3-3A-IO-1
|
T2-3A-IO-1
|
||
|
November
2007
|
T3-4A-IO-1
|
T2-4A-IO-1
|
||
|
December
2007
|
T3-5A-IO-1
|
T2-5A-IO-1
|
||
|
January
2008
|
T3-6A-IO-1
|
T2-6A-IO-1
|
||
|
February
2008
|
T3-7A-IO-1
|
T2-7A-IO-1
|
||
|
March
2008
|
T3-8A-IO-1
|
T2-8A-IO-1
|
||
|
April
2008
|
T3-9A-IO-1
|
T2-9A-IO-1
|
||
|
May
2008
|
T3-10A-IO-1
|
T2-10A-IO-1
|
||
|
June
2008
|
T3-11A-IO-1
|
T2-11A-IO-1
|
||
|
July
2008
|
T3-12A-IO-1
|
T2-12A-IO-1
|
||
|
August
2008
|
T3-13A-IO-1
|
T2-13A-IO-1
|
||
|
September
2008
|
T3-14A-IO-1
|
T2-14A-IO-1
|
||
|
October
2008
|
T3-15A-IO-1
|
T2-15A-IO-1
|
||
|
November
2008
|
T3-16A-IO-1
|
T2-16A-IO-1
|
||
|
December
2008
|
T3-17A-IO-1
|
T2-17A-IO-1
|
||
|
January
2009
|
T3-18A-IO-1
|
T2-18A-IO-1
|
||
|
February
2009
|
T3-19A-IO-1
|
T2-19A-IO-1
|
||
|
March
2009
|
T3-20A-IO-1
|
T2-20A-IO-1
|
||
|
April
2009
|
T3-21A-IO-1
|
T2-21A-IO-1
|
||
|
May
2009
|
T3-22A-IO-1
|
T2-22A-IO-1
|
||
|
June
2009
|
T3-23A-IO-1
|
T2-23A-IO-1
|
||
|
July
2009
|
T3-24A-IO-1
|
T2-24A-IO-1
|
||
|
August
2009
|
T3-25A-IO-1
|
T2-25A-IO-1
|
||
|
September
2009
|
T3-26A-IO-1
|
T2-26A-IO-1
|
||
|
October
2009
|
T3-27A-IO-1
|
T2-27A-IO-1
|
9
|
Distribution
Date
occurring
in
|
Corresponding
REMIC 3
Interest
|
Corresponding
REMIC 2
Interest
|
|
November
2009
|
T3-28A-IO-1
|
T2-28A-IO-1
|
||
|
December
2009
|
T3-29A-IO-1
|
T2-29A-IO-1
|
||
|
January
2010
|
T3-30A-IO-1
|
T2-30A-IO-1
|
|
(3)
|
This
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these REMIC 3 Regular Interests is a
per annum
rate equal to the greater of (i) 0.00% and (ii) the weighted average
of the interest rates on each REMIC 2 Interest having an “A-IO-2” in its
designation and T2-Pool-2 Interest, computed after reducing the rate
payable on each such REMIC 2 Interest having an “A-IO-2” in its Class
designation by the Class A-IO(2) Component Interest Rate for such
Distribution Date, for any Distribution Date on which interest is
payable
on its Corresponding REMIC 3 A-IO-2 Interest (as described in footnote
(4)
below).
|
|
(4)
|
Each
of these REMIC 3 Interests is an interest-only Interest and does
not have
a principal balance. For each Distribution Date on the chart below,
the
REMIC 3 Interest corresponding to such Distribution Date shall be
entitled
to interest payable on the REMIC 2 Interest corresponding to such
Distribution Date at a rate equal to the lesser
of
(i) the applicable “A-IO(2) Component Interest Rate” for such date set
forth on Exhibit F hereto and (ii) the interest rate of the REMIC
2
Interest corresponding to such distribution date. Each such REMIC
3
Interest shall be entitled to payments only for the Distribution
Date to
which it corresponds on the chart below.
|
|
Distribution
Date
occurring
in
|
Corresponding
REMIC
3 Interest
|
Corresponding
REMIC 2
Interest
|
|
August
2007
|
T3-1A-IO-2
|
T2-1A-IO-2
|
||
|
September
2007
|
T3-2A-IO-2
|
T2-2A-IO-2
|
||
|
October
2007
|
T3-3A-IO-2
|
T2-3A-IO-2
|
||
|
November
2007
|
T3-4A-IO-2
|
T2-4A-IO-2
|
||
|
December
2007
|
T3-5A-IO-2
|
T2-5A-IO-2
|
||
|
January
2008
|
T3-6A-IO-2
|
T2-6A-IO-2
|
||
|
February
2008
|
T3-7A-IO-2
|
T2-7A-IO-2
|
||
|
March
2008
|
T3-8A-IO-2
|
T2-8A-IO-2
|
||
|
April
2008
|
T3-9A-IO-2
|
T2-9A-IO-2
|
||
|
May
2008
|
T3-10A-IO-2
|
T2-10A-IO-2
|
||
|
June
2008
|
T3-11A-IO-2
|
T2-11A-IO-2
|
||
|
July
2008
|
T3-12A-IO-2
|
T2-12A-IO-2
|
||
|
August
2008
|
T3-13A-IO-2
|
T2-13A-IO-2
|
||
|
September
2008
|
T3-14A-IO-2
|
T2-14A-IO-2
|
||
|
October
2008
|
T3-15A-IO-2
|
T2-15A-IO-2
|
||
|
November
2008
|
T3-16A-IO-2
|
T2-16A-IO-2
|
||
|
December
2008
|
T3-17A-IO-2
|
T2-17A-IO-2
|
||
|
January
2009
|
T3-18A-IO-2
|
T2-18A-IO-2
|
||
|
February
2009
|
T3-19A-IO-2
|
T2-19A-IO-2
|
||
|
March
2009
|
T3-20A-IO-2
|
T2-20A-IO-2
|
||
|
April
2009
|
T3-21A-IO-2
|
T2-21A-IO-2
|
||
|
May
2009
|
T3-22A-IO-2
|
T2-22A-IO-2
|
||
|
June
2009
|
T3-23A-IO-2
|
T2-23A-IO-2
|
||
|
July
2009
|
T3-24A-IO-2
|
T2-24A-IO-2
|
||
|
August
2009
|
T3-25A-IO-2
|
T2-25A-IO-2
|
||
|
September
2009
|
T3-26A-IO-2
|
T2-26A-IO-2
|
||
|
October
2009
|
T3-27A-IO-2
|
T2-27A-IO-2
|
10
|
Distribution
Date
occurring
in
|
Corresponding
REMIC
3 Interest
|
Corresponding
REMIC 2
Interest
|
|
November
2009
|
T3-28A-IO-2
|
T2-28A-IO-2
|
||
|
December
2009
|
T3-29A-IO-2
|
T2-29A-IO-2
|
||
|
January
2010
|
T3-30A-IO-2
|
T2-30A-IO-2
|
|
(5)
|
This
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these REMIC 3 Regular Interests is a
per annum
rate equal to the greater of (i) 0.00% and (ii) the weighted average
of the interest rates on the each REMIC 2 Interest having an “A-IO” in its
designation, the T2-Pool-1 Interest and T2-Pool-2 Interest, computed
after
(a) reducing the rate payable on each such REMIC 2 Interest having
an
“A-IO-1” in its Class designation by the Class A-IO(1) Component Interest
Rate for such Distribution Date and (b) reducing the rate payable
on each
such REMIC 2 Interest having an “A-IO-2” in its Class designation by the
Class A-IO(2) Component Interest Rate for such Distribution Date,
for each
Distribution Date on which interest is payable on its Corresponding
REMIC
3 A-IO Interest (as described in footnote (2) or (4)
above).
|
|
(6)
|
The
T3-IO-Swap Interest shall not have a principal balance, but shall
be
entitled to receive, on each Distribution Date, 100% of the interest
distributable on the Class T2-IO-Swap Interest in REMIC 2.
|
|
(7)
|
The
R-3 Interest shall not have a principal amount and shall not bear
interest. The R-3 interest is hereby designated as the sole class
of
residual interest in REMIC 3.
|
|
(8)
|
This
interest shall have an initial principal amount equal to one percent
of
the Pool Subordinate Amount for Pool 1 as of the Cut-off
Date.
|
|
(9)
|
This
interest shall have an initial principal amount equal to the excess
of (i)
one half of the sum of the outstanding principal balances of the
Pool 1
Mortgage Loans as of the Cut-off Date over (ii) the aggregate initial
principal balance of the T3-PSA-1 interest, the T3-1-A1 interest,
the
T3-1-A2 interest, the T3-1-A3 interest, the T3-1-A4 interest and
the
T3-1-A5 interest.
|
|
(10)
|
This
interest shall have an initial principal amount equal to one percent
of
the Pool Subordinate Amount for Pool 2 as of the Cut-off
Date.
|
|
(11)
|
This
interest shall have an initial principal amount equal to the excess
of (i)
one half of the sum of the outstanding principal balances of the
Pool 2
Mortgage Loans as of the Cut-off Date over (ii) the initial principal
balance of the T3-PSA-2 interest, the T3-2-A1 interest, the T3-2-A2
interest, the T3-2-A3 interest and the T3-2-A4
interest.
|
(12)
This
interest shall have an initial principal balance equal to the excess of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date over
the sum of the initial principal balances of each other interest in REMIC
3.
On
each
Distribution Date, interest distributable in respect of the REMIC 2 Regular
Interests shall be distributed with respect to each of the Interests in REMIC
3
based on the above-described interest rates, provided, however,
that
interest that accrues on the T3-Q Interest shall be deferred to the extent
necessary to make the principal distributions described in priorities (i)
through (v) below for such Distribution Date. Any interest so deferred shall
itself bear interest at the interest rate for the T3-Q Interest.
On
each
Distribution Date, the principal distributed on the REMIC 2 Regular Interests
(together with an amount equal to the interest deferred on the Class T3-Q
Interest for such Distribution Date) shall be distributed, and Realized Losses
shall be allocated, among the Interests in REMIC 3 in the following order of
priority:
11
(i) first,
to
the
T3-PSA-1 interest until its outstanding principal amount equals one percent
of
the Pool Subordinate Amount for Pool 1 immediately after such Distribution
Date;
(ii) second,
to
the
T3-PSA-2 interest until its outstanding principal amount equals one percent
of
the Pool Subordinate Amount for Pool 2 immediately after such Distribution
Date;
(iii) third,
to
each remaining interest in REMIC 3 having a Corresponding Class in REMIC 4
(other than a REMIC 3 interest having an “A-IO” in its class designation) until
the outstanding principal amount of each such interest equals one-quarter of
the
outstanding principal amount of the Corresponding Class of Certificates for
such
interest immediately after such Distribution Date;
(iv) fourth,
to the T3-Pool-1 Interest until the aggregate principal balance of such
interest, the T3-PSA-1 interest, the T3-1-A1 interest, the T3-1-A2 interest,
the
T3-1-A3 interest, the T3-1-A4 interest and the T3-1-A5 interest equals one
half
of the sum of the outstanding principal balances of the Pool 1 Mortgage Loans
immediately after such Distribution Date;
(v) fifth,
to
the T3-Pool-2 Interest until the aggregate principal balance of such interest,
the T3-PSA-2 interest, the T3-2-A1 interest, the T3-2-A2 interest, the T3-2-A3
interest and the T3-2-A4 interest equals one half of the sum of the outstanding
principal balances of the Pool 2 Mortgage Loans immediately after such
Distribution Date; and
(vi) finally,
to the Class T3-Q Interest, any remaining amounts.
On
each
Distribution Date, all prepayment premiums or penalties or yield maintenance
payments received during the related Prepayment Period (to
the
extent payable to the Class P Certificates) with
respect to the Mortgage Loans shall be distributed to the T3-Q
Interest.
REMIC
4:
The
following table sets forth the designations, principal balances, and interest
rates for each interest in REMIC 4, each of which (other than the R-4 Interest)
is hereby designated as a regular interest in REMIC 4 (the “REMIC 4 Regular
Interests”):
|
REMIC
Interests
|
Initial
Balance
|
Interest
Rate
|
Corresponding
Class of Certificates
|
|
T4-A-IO
|
(1)
|
(1)
|
A-IO
|
|||
|
T4-IO-Swap
|
(2)
|
(2)
|
N/A
|
12
|
REMIC
Interests
|
Initial
Balance
|
Interest
Rate
|
Corresponding
Class of
Certificates
|
|
T4-1-A1
|
(7)
|
(3)
|
1-A1
|
|||
|
T4-1-A2
|
(7)
|
(3)
|
1-A2
|
|||
|
T4-1-A3
|
(7)
|
(3)
|
1-A3
|
|||
|
T4-1-A4
|
(7)
|
(3)
|
1-A4
|
|||
|
T4-1-A5
|
(7)
|
(3)
|
1-A5
|
|||
|
T4-2-A1
|
(7)
|
(3)
|
2-A1
|
|||
|
T4-2-A2
|
(7)
|
(3)
|
2-A2
|
|||
|
T4-2-A3
|
(7)
|
(3)
|
2-A3
|
|||
|
T4-2-A4
|
(7)
|
(3)
|
2-A4
|
|||
|
T4-M-1
|
(7)
|
(3)
|
M-1
|
|||
|
T4-M-2
|
(7)
|
(3)
|
M-2
|
|||
|
T4-M-3
|
(7)
|
(3)
|
M-3
|
|||
|
T4-M-4
|
(7)
|
(3)
|
M-4
|
|||
|
T4-B-1
|
(7)
|
(3)
|
B-1
|
|||
|
T4-B-2
|
(7)
|
(3)
|
B-2
|
|||
|
T4-X
|
(4)
|
(4)
|
X
|
|||
|
T4-P
|
$ 100.00
|
(5)
|
P
|
|||
|
R-4
|
(6)
|
(6)
|
R
|
|
(1)
|
The
T4-A-IO Interest shall not have a principal balance, but shall be
entitled
to receive, on each Distribution Date, 100% of the interest distributable
on each REMIC 3 Regular Interest with the term “A-IO” in its
designation.
|
|
(2)
|
The
T4-IO-Swap Interest shall not have a principal balance, but shall
be
entitled to receive, on each Distribution Date, 100% of the interest
distributable on the Class T3-IO-Swap Interest in REMIC 3.
|
|
(3)
|
This
Interest shall bear interest at the lesser
of
(i) the Interest Rate (determined without regard to the Pool 1, Pool
2, or
Subordinate Available Funds Cap, as applicable) for the Corresponding
Class of Certificates for such Interest and (ii) the weighted average
of
the interest rates of the REMIC 3 Regular Interests (other than any
interest-only regular interest), weighted on the principal balances
of
such Interests (the “REMIC 3 Net WAC Rate”).
|
|
(4)
|
The
T4-X interest shall be comprised of a principal-only component and
an
interest-only component. The principal-only component shall have
an
initial principal balance of $16,747,939.85 but such amount shall
not bear
interest. The interest-only component shall have a notional balance
equal
to the aggregate Stated Principal Balance of the Mortgage Loans.
The
interest-only component shall bear interest at a rate equal to the
excess,
if any, of (i) the REMIC 3 Net WAC Rate over (ii) Adjusted Lower
Tier WAC.
For any Distribution Date, interest that accrues on the T4-X interest
shall be deferred to the extent of any increase in the
Overcollateralization Amount on such date. Such deferred interest
shall
not itself bear interest.
|
|
(5)
|
The
T4-P interest shall not be entitled to payments of interest, but
shall be
entitled to receive all prepayment premiums or penalties or yield
maintenance payments received in respect of the Mortgage Loans to
the
extent payable to the Class P
Certificates.
|
|
(6)
|
The
R-4 Interest shall not have a principal amount and shall not bear
interest. The R-4 interest is hereby designated as the sole class
of
residual interest in REMIC 4.
|
|
(7)
|
This
Interest shall have an initial principal balance equal to the initial
Class Principal Balance of its corresponding Class of
Certificates.
|
On
each
Distribution Date, interest distributable in respect of the REMIC 3 Regular
Interests for such Distribution Date shall be distributed to the Interests
in
REMIC 4 at the rates shown above.
13
On
each
Distribution Date, each REMIC 4 Regular Interest shall be allocated Realized
Losses and principal in amounts equal to those allocated to the Corresponding
Class of Certificates for each such REMIC 4 Regular Interest.
Certificates:
The
following table sets forth certain characteristics of the Certificates, together
with minimum denominations and integral multiples in excess thereof in which
such Classes shall be issuable (except that one Class R Certificate representing
the Tax Matters Person Certificate may be issued in a different
amount):
|
Class
Designation
|
Initial
Class
Principal
Balance
or Class Notional Balance
|
Interest
Rate
(per
annum)
|
Minimum
Denomination
|
Integral
Multiples
in
Excess of
Minimum
|
||||
|
Class
1-A1
|
$67,539,000
|
(1)
|
$
100,000
|
$
1
|
||||
|
Class
1-A2
|
$31,104,000
|
(2)
|
$
100,000
|
$
1
|
||||
|
Class
1-A3
|
$ 7,408,000
|
(3)
|
$
100,000
|
$
1
|
||||
|
Class
1-A4
|
$13,255,000
|
(4)
|
$
100,000
|
$
1
|
||||
|
Class
1-A5
|
$13,256,000
|
(5)
|
$
100,000
|
$
1
|
||||
|
Class
2-A1
|
$56,660,000
|
(6)
|
$
100,000
|
$
1
|
||||
|
Class
2-A2
|
$26,437,000
|
(7)
|
$
100,000
|
$
1
|
||||
|
Class
2-A3
|
$29,696,000
|
(8)
|
$
100,000
|
$
1
|
||||
|
Class
2-A4
|
$70,000,000
|
(9)
|
$
100,000
|
$
1
|
||||
|
Class
A-IO
|
(10)
|
(11)
|
$ 3,000,000(12)
|
$
1
|
||||
|
Class
M-1
|
$21,563,000
|
(13)
|
$
100,000
|
$
1
|
||||
|
Class
M-2
|
$ 6,161,000
|
(14)
|
$
100,000
|
$
1
|
||||
|
Class
M-3
|
$10,974,000
|
(15)
|
$
100,000
|
$
1
|
||||
|
Class
M-4
|
$ 5,006,000
|
(16)
|
$
100,000
|
$
1
|
||||
|
Class
B-1
|
$ 4,814,000
|
(17)
|
$
100,000
|
$
1
|
||||
|
Class
B-2
|
$ 4,428,000
|
(18)
|
$
100,000
|
$
1
|
||||
|
Class
X
|
(19)
|
(19)
|
(19)
|
(20)
|
||||
|
Class
P
|
(21)
|
(22)
|
(22)
|
(22)
|
||||
|
Class
R
|
(23)
|
(23)
|
(24)
|
(24)
|
||||
|
Class
RL
|
(25)
|
(25)
|
(26)
|
(26)
|
|
(1)
|
The
lesser
of
(i) 6.407% and (ii) the Pool 1 Available Funds Cap; provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
specified
in clause (i) shall be 6.907%. For purposes of the REMIC Provisions,
Class
1-A1 shall represent beneficial ownership of the T4-1-A1 Interest
in REMIC
4. Any amount distributed on the Class 1-A1 Certificates on any
Distribution Date in excess of the amount distributable on the T4-1-A1
Interest on such Distribution Date shall be treated as having been
paid
from the Reserve Fund, and any amount distributable on the T4-1-A1
Interest on such Distribution Date in excess of the amount distributable
on Class 1-A1 on such Distribution Date shall be treated as having
been
paid to the Reserve Fund, all pursuant to and as further described
in
Section 2.6(d) hereof.
|
|
(2)
|
The
lesser
of
(i) 6.831% and (ii) the Pool 1 Available Funds Cap; provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
specified
in clause (i) shall be 7.331%
For purposes of the REMIC Provisions, Class 1-A2 shall represent
beneficial ownership of the T4-1-A2 Interest in REMIC 4. Any amount
distributed on the Class 1-A2 Certificates on any Distribution Date
in
excess of the amount distributable on the T4-1-A2 Interest on such
Distribution Date shall be treated as having been paid from the Reserve
Fund, and any amount distributable on the T4-1-A2 Interest on such
Distribution Date in excess of the amount distributable on Class
1-A2 on
such Distribution Date shall be treated as having been paid to the
Reserve
Fund, all pursuant to and as further described in Section 2.6(d)
hereof.
|
14
|
(3)
|
The
lesser
of
(i) 7.219% and (ii) the Pool 1 Available Funds Cap; provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
specified
in clause (i) shall be 7.719% For purposes of the REMIC Provisions,
Class
1-A3 shall represent beneficial ownership of the T4-1-A3 Interest
in REMIC
4. Any amount distributed on the Class 1-A3 Certificates on any
Distribution Date in excess of the amount distributable on the T4-1-A3
Interest on such Distribution Date shall be treated as having been
paid
from the Reserve Fund, and any amount distributable on the T4-1-A3
Interest on such Distribution Date in excess of the amount distributable
on Class 1-A3 on such Distribution Date shall be treated as having
been
paid to the Reserve Fund, all pursuant to and as further described
in
Section 2.6(d) hereof.
|
|
(4)
|
The
lesser
of
(i) 8.048% and (ii) the Pool 1 Available Funds Cap; provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
specified
in clause (i) shall be 8.548%. For purposes of the REMIC Provisions,
Class
1-A4 shall represent beneficial ownership of the T4-1-A4 Interest
in REMIC
4. Any amount distributed on the Class 1-A4 Certificates on any
Distribution Date in excess of the amount distributable on the T4-1-A4
Interest on such Distribution Date shall be treated as having been
paid
from the Reserve Fund, and any amount distributable on the T4-1-A4
Interest on such Distribution Date in excess of the amount distributable
on Class 1-A4 on such Distribution Date shall be treated as having
been
paid to the Reserve Fund, all pursuant to and as further described
in
Section 2.6(d) hereof.
|
|
(5)
|
The
lesser
of
(i) 6.770%
and (ii) the Pool 1 Available Funds Cap; provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
specified
in clause (i) shall be 7.270%. For purposes of the REMIC Provisions,
Class
1-A5 shall represent beneficial ownership of the T4-1-A5 Interest
in REMIC
4. Any amount distributed on the Class 1-A5 Certificates on any
Distribution Date in excess of the amount distributable on the T4-1-A5
Interest on such Distribution Date shall be treated as having been
paid
from the Reserve Fund, and any amount distributable on the T4-1-A5
Interest on such Distribution Date in excess of the amount distributable
on Class 1-A5 on such Distribution Date shall be treated as having
been
paid to the Reserve Fund, all pursuant to and as further described
in
Section 2.6(d) hereof.
|
|
(6)
|
The
lesser
of
(i) LIBOR plus 0.300% and (ii) the Pool 2 Available Funds Cap;
provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
calculated pursuant to clause (i) shall be LIBOR plus 0.450%. For
purposes
of the REMIC Provisions, Class 2-A1 shall represent beneficial ownership
of the T4-2-A1 Interest in REMIC 4. Any amount distributed on the
Class
2-A1 Certificates on any Distribution Date in excess of the amount
distributable on the T4-2-A1 Interest on such Distribution Date shall
be
treated as having been paid from the Reserve Fund, and any amount
distributable on the T4-2-A1 Interest on such Distribution Date in
excess
of the amount distributable on Class 2-A1 on such Distribution Date
shall
be treated as having been paid to the Reserve Fund, all pursuant
to and as
further described in Section 2.6(d)
hereof.
|
|
(7)
|
The
lesser
of
(i) LIBOR plus 0.400% and (ii) the Pool 2 Available Funds Cap;
provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
calculated pursuant to clause (i) shall be LIBOR plus 0.600%. For
purposes
of the REMIC Provisions, Class 2-A2 shall represent beneficial ownership
of the T4-2-A2 Interest in REMIC 4. Any amount distributed on the
Class
2-A2 Certificates on any Distribution Date in excess of the amount
distributable on the T4-2-A2 Interest on such Distribution Date shall
be
treated as having been paid from the Reserve Fund, and any amount
distributable on the T4-2-A2 Interest on such Distribution Date in
excess
of the amount distributable on Class 2-A2 on such Distribution Date
shall
be treated as having been paid to the Reserve Fund, all pursuant
to and as
further described in Section 2.6(d)
hereof.
|
15
|
(8)
|
The
lesser
of
(i) LIBOR plus 0.850% and (ii) the Pool 2 Available Funds Cap;
provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
calculated pursuant to clause (i) shall be LIBOR plus 1.275%. For
purposes
of the REMIC Provisions, Class 2-A3 shall represent beneficial ownership
of the T4-2-A3 Interest in REMIC 4. Any amount distributed on the
Class
2-A3 Certificates on any Distribution Date in excess of the amount
distributable on the T4-2-A3 Interest on such Distribution Date shall
be
treated as having been paid from the Reserve Fund, and any amount
distributable on the T4-2-A3 Interest on such Distribution Date in
excess
of the amount distributable on Class 2-A3 on such Distribution Date
shall
be treated as having been paid to the Reserve Fund, all pursuant
to and as
further described in Section 2.6(d)
hereof.
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|
(9)
|
The
lesser
of
(i) LIBOR plus 0.700% and (ii) the Pool 2 Available Funds Cap;
provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
calculated pursuant to clause (i) shall be LIBOR plus 1.050%. For
purposes
of the REMIC Provisions, Class 2-A4 shall represent beneficial ownership
of the T4-2-A4 Interest in REMIC 4. Any amount distributed on the
Class
2-A4 Certificates on any Distribution Date in excess of the amount
distributable on the T4-2-A4 Interest on such Distribution Date shall
be
treated as having been paid from the Reserve Fund, and any amount
distributable on the T4-2-A4 Interest on such Distribution Date in
excess
of the amount distributable on Class 2-A4 on such Distribution Date
shall
be treated as having been paid to the Reserve Fund, all pursuant
to and as
further described in Section 2.6(d)
hereof.
|
|
(10)
|
The
Class A-IO Certificates shall accrue interest on their Class Notional
Balance and shall not be entitled to receive any distributions of
principal. For purposes of the REMIC Provisions, Class A-IO shall
represent beneficial ownership of the T4-A-IO Interest in REMIC
4.
|
|
(11)
|
Interest
shall accrue on each Component of the Class A-IO Certificates at
its
Component Interest Rate, as provided in this
Agreement.
|
|
(12)
|
Minimum
denomination is based on the Class Notional Balance of such
Class.
|
|
(13)
|
The
lesser
of
(i) LIBOR plus 1.250%
and (ii) the Subordinate Available Funds Cap; provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
calculated pursuant to clause (i) shall be LIBOR plus 1.875%. For
purposes
of the REMIC Provisions, Class M-1 shall represent beneficial ownership
of
the T4-M-1 Interest in REMIC 4. Any amount distributed on the Class
M-1
Certificates on any Distribution Date in excess of the amount
distributable on the T4-M-1 Interest on such Distribution Date shall
be
treated as having been paid from the Reserve Fund, and any amount
distributable on the T4-M-1 Interest on such Distribution Date in
excess
of the amount distributable on Class M-1 on such Distribution Date
shall
be treated as having been paid to the Reserve Fund, all pursuant
to and as
further described in Section 2.6(d)
hereof.
|
|
(14)
|
The
lesser
of
(i) LIBOR plus 1.750% and (ii) the Subordinate Available Funds Cap;
provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
calculated pursuant to clause (i) shall be LIBOR plus 2.625%. For
purposes
of the REMIC Provisions, Class M-2 shall represent beneficial ownership
of
the T4-M-2 Interest in REMIC 4. Any amount distributed on the Class
M-2
Certificates on any Distribution Date in excess of the amount
distributable on the T4-M-2 Interest on such Distribution Date shall
be
treated as having been paid from the Reserve Fund, and any amount
distributable on the T4-M-2 Interest on such Distribution Date in
excess
of the amount distributable on Class M-2 on such Distribution Date
shall
be treated as having been paid to the Reserve Fund, all pursuant
to and as
further described in Section 2.6(d)
hereof.
|
16
|
(15)
|
The
lesser
of
(i) LIBOR plus 2.000%
and (ii) the Subordinate Available Funds Cap; provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
calculated pursuant to clause (i) shall be LIBOR plus 3.000%. For
purposes
of the REMIC Provisions, Class M-3 shall represent beneficial ownership
of
the T4-M-3 Interest in REMIC 4. Any amount distributed on the Class
M-3
Certificates on any Distribution Date in excess of the amount
distributable on the T4-M-3 Interest on such Distribution Date shall
be
treated as having been paid from the Reserve Fund, and any amount
distributable on the T4-M-3 Interest on such Distribution Date in
excess
of the amount distributable on Class M-3 on such Distribution Date
shall
be treated as having been paid to the Reserve Fund, all pursuant
to and as
further described in Section 2.6(d)
hereof.
|
|
(16)
|
The
lesser
of
(i) LIBOR plus 2.500% and (ii) the Subordinate Available Funds Cap;
provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
calculated pursuant to clause (i) shall be LIBOR plus 3.750%. For
purposes
of the REMIC Provisions, Class M-4 shall represent beneficial ownership
of
the T4-M-4 Interest in REMIC 4. Any amount distributed on the Class
M-4
Certificates on any Distribution Date in excess of the amount
distributable on the T4-M-4 Interest on such Distribution Date shall
be
treated as having been paid from the Reserve Fund, and any amount
distributable on the T4-M-4 Interest on such Distribution Date in
excess
of the amount distributable on Class M-4 on such Distribution Date
shall
be treated as having been paid to the Reserve Fund, all pursuant
to and as
further described in Section 2.6(d)
hereof.
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|
(17)
|
The
lesser
of
(i) LIBOR plus 4.000% and (ii) the Subordinate Available Funds Cap;
provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
calculated pursuant to clause (i) shall be LIBOR plus 6.000%. For
purposes
of the REMIC Provisions, Class B-1 shall represent beneficial ownership
of
the T4-B-1 Interest in REMIC 4. Any amount distributed on the Class
B-1
Certificates on any Distribution Date in excess of the amount
distributable on the T4-B-1 Interest on such Distribution Date shall
be
treated as having been paid from the Reserve Fund, and any amount
distributable on the T4-B-1 Interest on such Distribution Date in
excess
of the amount distributable on Class B-1 on such Distribution Date
shall
be treated as having been paid to the Reserve Fund, all pursuant
to and as
further described in Section 2.6(d)
hereof.
|
|
(18)
|
The
lesser
of
(i) LIBOR plus 6.000% and (ii) the Subordinate Available Funds Cap;
provided,
that if the Master Servicer does not exercise the option to purchase
the
Mortgage Loans and the related property pursuant to Section 10.02(a)
on
the Distribution Date on which it is first entitled to do so, then
with
respect to each subsequent Distribution Date, the per annum rate
calculated pursuant to clause (i) shall be LIBOR plus 9.000%. For
purposes
of the REMIC Provisions, Class B-2 shall represent beneficial ownership
of
the T4-B-2 Interest in REMIC 4. Any amount distributed on the Class
B-2
Certificates on any Distribution Date in excess of the amount
distributable on the T4-B-2 Interest on such Distribution Date shall
be
treated as having been paid from the Reserve Fund, and any amount
distributable on the T4-B-2 Interest on such Distribution Date in
excess
of the amount distributable on Class B-2 on such Distribution Date
shall
be treated as having been paid to the Reserve Fund, all pursuant
to and as
further described in Section 2.6(d)
hereof.
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|
(19)
|
The
Class X Certificates shall not have a principal balance and shall
not bear
interest; the Class X Certificates shall be entitled solely to
distributions made pursuant to Section 6.05(e)(ix) and (x) hereof.
For
purposes of the REMIC Provisions, Class X shall represent (i) beneficial
ownership of the T4-X Interest in REMIC 4; (ii) beneficial ownership
of
the T4-IO-Swap Interest in REMIC 4; (iii) beneficial ownership of
the
Reserve Fund; (iv) beneficial ownership of the Cap Agreement and
(v) an
interest in the notional principal contracts described in Section
2.06(d)
hereof.
|
17
|
(20)
|
The
Class X Certificates shall be issued in minimum denominations in
Percentage Interest of 10%.
|
|
(21)
|
The
Class P Certificates shall have an initial Class P Principal Amount
of
$100.
|
|
(22)
|
The
Class P Certificates shall be issued without an Interest Rate, and
shall
be issued in minimum denominations in Percentage Interest of 10%.
For
purposes of the REMIC Provisions, the Class P Certificates shall
represent
beneficial ownership of the T4-P Interest in REMIC
4.
|
|
(23)
|
The
Class R Certificates shall not have a principal balance and shall
not bear
interest.
|
|
(24)
|
The
Class R Certificates shall be issued as two separate certificates,
one
having a Percentage Interest of 99.99999% and the Tax Matters Person
Certificate having a Percentage Interest of 0.00001%. For purposes
of the
REMIC Provisions, the Class R Certificates shall represent beneficial
ownership of the R-2, R-3 and R-4
Interests.
|
|
(25)
|
The
Class RL Certificates shall not have a principal balance and shall
not
bear interest.
|
|
(26)
|
The
Class RL Certificates shall be issued as a single certificate. For
purposes of the REMIC Provisions, the Class RL Certificates shall
represent beneficial ownership of the R-1
Interest.
|
ARTICLE
I
DEFINITIONS
Section
1.01. Certain
Defined Terms.
As
used
herein, the following terms shall have the following meanings:
10-K
Filing Deadline:
As
defined in Section 4.31(c) hereof.
2004-B
Re-sold Mortgage Loan:
Any
Mortgage Loan assigned by the 2004-B Revolving Trust to BFPT II and subsequently
assigned by BFPT II to the Depositor pursuant to the BFPT II Assignment
Agreement and identified on Schedule II-B hereto.
2004-B
Revolving Assignment Agreement:
The
Assignment and Relinquishment of Security Interest Agreement dated as of July
1,
2007, by and among the 2004-B Revolving Trust, BFPT II and the Indenture
Trustee, as such may be amended or supplemented from time to time.
2004-B
Revolving Purchase Agreement:
The
Mortgage Loan Purchase Agreement dated as of April 16, 2004, by and between
the
Seller and BFPT II, providing for the transfer of certain mortgage loans
(including the 2004-B Re-sold Mortgage Loans) to BFPT II.
2004-B
Revolving Trust:
Bayview
Financial Revolving Asset Trust 2004-B.
2005-A
Re-sold Mortgage Loan:
Any
Mortgage Loan assigned by the 2005-A Revolving Trust to BFPT II and subsequently
assigned by BFPT II to the Depositor pursuant to the BFPT II Assignment
Agreement and identified on Schedule II-C hereto.
2005-A
Revolving Assignment Agreement:
The
Assignment and Relinquishment of Security Interest Agreement dated as of July
1,
2007, by and among the 2005-A Revolving Trust, BFPT II and the Indenture
Trustee, as such may be amended or supplemented from time to time.
18
2005-A
Revolving Purchase Agreement:
The
Mortgage Loan Purchase Agreement dated as of February 1, 2005, by and between
the Seller and BFPT II, providing for the transfer of certain mortgage loans
(including the 2005-A Re-sold Mortgage Loans) to BFPT II.
2005-A
Revolving Trust:
Bayview
Financial Revolving Asset Trust 2005-A.
2005-E
Re-sold Mortgage Loan:
Any
Mortgage Loan assigned by the 2005-E Revolving Trust to BFPT II and subsequently
assigned by BFPT II to the Depositor pursuant to the BFPT II Assignment
Agreement and identified on Schedule II-D hereto.
2005-E
Revolving Assignment Agreement:
The
Assignment and Relinquishment of Security Interest Agreement dated as of July
1,
2007, by and among the 2005-E Revolving Trust, BFPT II and the Indenture
Trustee, as such may be amended or supplemented from time to time.
2005-E
Revolving Purchase Agreement:
The
Mortgage Loan Purchase Agreement dated as of November 1, 2005, by and between
the Seller and BFPT II, providing for the transfer of certain mortgage loans
(including the 2005-E Re-sold Mortgage Loans) to BFPT II.
2005-E
Revolving Trust:
Bayview
Financial Revolving Asset Trust 2005-E.
60-Day
Delinquency Rate:
With
respect to any Due Period, the fraction, expressed as a percentage, (1) the
numerator of which is the sum of (a) the aggregate outstanding principal balance
of all Mortgage Loans 60 days or more delinquent, all Mortgage Loans in
foreclosure and all Mortgage Loans relating to REO Property as of the close
of
business on the last day of such Due Period and (b) the sum of the aggregate
outstanding principal balance of all Mortgage Loans (i) modified within the
12
months preceding the related Distribution Date but after the Closing Date and
(ii) repurchased within the 12 months preceding the related Distribution Date
and (2) the denominator of which is the Aggregate Pool Balance on the last
day
of such Due Period.
A-IO(1)
Component Net Funds Cap:
With
respect to each Distribution Date and the A-IO(1) Component, a per annum rate
equal to (a)
a
fraction, expressed as a percentage, the numerator of which is the product
of
(x) the Optimal Interest Remittance Amount for such Distribution Date and (y)
12, and the denominator of which is the A-IO(1) Component Notional Balance
for
such Distribution Date.
A-IO(2)
Component Net Funds Cap:
With
respect to each Distribution Date and the Class A-IO(2) Component, a per annum
rate equal to (a) the Pool 2 Net WAC minus
(b)(1) a
fraction, the numerator of which is the product of (x) the sum of any Net Swap
Payment and Swap Termination Payment (not due to a Swap Counterparty Trigger
Event) owed to the Swap Counterparty for the related Distribution Date and
(y)
12, and the denominator of which is the Pool Balance for Pool 2 for that
Distribution Date.
Accepted
Master Servicing Practices:
With
respect to any Mortgage Loan, those customary mortgage master servicing
practices of prudent mortgage servicing institutions that master service
mortgage loans of the same type and quality as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Master Servicer (except in its capacity as successor to a
Servicer).
19
Accrual
Period:
With
respect to any Distribution Date and (i) the Group 1 Certificates, the calendar
month immediately preceding such Distribution Date, provided
that for
purposes of determining the Accrual Period for the Group 1 Certificates, each
Distribution Date shall be deemed to occur on the 28th
calendar
day of the related month, regardless whether such day is a Business Day, and
(ii) the Class A-IO Certificates (and each Component thereof) and the LIBOR
Certificates, the period commencing on the immediately preceding Distribution
Date (or the Closing Date in the case of the first Accrual Period) and ending
on
the day immediately preceding the current Distribution Date. All calculations
of
interest on each Component of the Class A-IO Certificates and the Group 1
Certificates shall be made on the basis of a 360-day year assumed to consist
of
twelve 30-day months, and all calculations of interest on the LIBOR Certificates
will be made on the basis of the actual number of days elapsed in the related
Accrual Period and a year of 360 days.
Additional
Collateral:
With
respect to any Additional Collateral Mortgage Loan, the marketable securities
and other acceptable collateral pledged as collateral pursuant to the related
pledge agreements.
Additional
Collateral Mortgage Loan:
Each
Mortgage Loan identified as such on the Mortgage Loan Schedule.
Additional
Disclosure Notification:
As
defined in Section 4.31(a) hereof.
Additional
Form 10-D Disclosure:
As
defined in Section 4.31(b) hereof.
Additional
Form 10-K Disclosure:
As
defined in Section 4.31(c) hereof.
Additional
Servicer:
Each
affiliate of each Servicer that Services any of the Mortgage Loans and each
Person that is not an affiliate of each such Servicer that Services 10% or
more
of the Mortgage Loans.
Additional
Termination Event:
As
defined in the Swap Agreement.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan that provides for the adjustment of the Mortgage Rate payable
in
respect thereto, identified as such on the Mortgage Loan Schedule.
Adjusted
Lower Tier WAC:
For any
Accrual Period, the product of (a) four and (b) the weighted average of the
interest rates on the T3-Q, T3-Pool-1, X0-XXX-0, X0-Xxxx-0, X0-XXX-0, X0-0-X0,
X0-0-X0, T3-1-A3, T3-1-A4, T3-1-A5, T3-2-A1, T3-2-A2, T3-2-A3, T3-2-A4, T3-M-1,
T3-M-2, T3-M-3, T3-M-4, T3-B-1 and T3-B-2 Interests determined for this purpose
by first subjecting the rate payable on the T3-Pool-1, T3-PSA-1, T3-Pool-2,
T3-PSA-2 and T3-Q Interests to a cap of zero, and subjecting the rate payable
on
each of the T3-1-A1, T3-1-A2, T3-1-A3, T3-1-A4, T3-1-A5, T3-2-A1, T3-2-A2,
T3-2-A3, T3-2-A4, T3-M-1, T3-M-2, T3-M-3, T3-M-4, T3-B-1 and T3-B-2 Interests
to
a cap that corresponds to the Interest Rate for the Corresponding Class of
Certificates; provided
that the
Interest Rate of each such Class shall be determined by substituting the REMIC
3
Net WAC Rate for the Pool 1 Available Funds Cap, Pool 2 Available Funds Cap
or
the Subordinate Available Funds Cap, as applicable.
Advances:
Each of
a Delinquency Advance and a Servicing Advance, as applicable.
20
Adverse
Claim:
Any
claim of ownership or any lien, security interest, title retention, trust or
other charge or encumbrance, or other type of preferential arrangement having
the effect or purpose of creating a lien or security interest, other than any
security interest created under this Agreement.
Adverse
REMIC Event:
Either
(i) loss of status as a REMIC, within the meaning of Section 860D of the Code,
for any group of assets identified as a REMIC in the Preliminary Statement
to
this Agreement, or (ii) imposition of any tax, including the tax imposed under
Section 860F(a)(1) on prohibited transactions, and the tax imposed under Section
860G(d) on certain contributions to a REMIC, on any REMIC created hereunder
to
the extent such tax would be payable from assets held as part of the Trust
Fund.
AFC
Shortfall:
As
defined in Section 2.06(d) hereof.
Affected
Party:
As
defined in the Swap Agreement.
Affiliate:
With
respect to any Person, any other Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with respect to
any specified Person means the power to direct the management and policies
of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
Aggregate
Pool Balance:
With
respect to any Distribution Date, the aggregate Principal Balance of the Pool
1
Mortgage Loans and the Pool 2 Mortgage Loans for such Distribution
Date.
Agreement:
This
Pooling and Servicing Agreement, as amended from time to time, including all
exhibits and schedules hereto.
Anniversary
Year:
The
one-year period beginning on the Closing Date and ending on the first
anniversary thereof, and each subsequent one-year period beginning on the day
after the end of the preceding Anniversary Year and ending on next succeeding
anniversary of the Closing Date.
Applied
Loss Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the aggregate
principal balance of
the
Group 1 Certificates and the LIBOR Certificates, after
giving
effect to distributions on such date, but before giving effect to any
application of the Applied Loss Amount, exceeds (y) the Aggregate Pool
Balance for such Distribution Date.
Assignment:
With
respect to each Mortgage Loan, an assignment of the Mortgage, notice of transfer
or equivalent instrument sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect of record the transfer
of
the Mortgage.
Assignment
Agreement:
Each of
the 2004-B Revolving Assignment Agreement, the 2005-A Revolving Assignment
Agreement and the 2005-E Revolving Assignment Agreement.
21
Authorized
Officer:
With
respect to any corporation or limited liability company, the Chairman of the
Board, the President, any Vice President, the Secretary, the Treasurer, any
Assistant Secretary, any Assistant Treasurer and each other officer of such
corporation or the members and manager of such limited liability company
specifically authorized in resolutions of the Board of Directors of such
corporation or limited liability company to sign agreements, instruments or
other documents in connection with this Agreement on behalf of such corporation
or limited liability company, as the case may be. With respect to any trust,
any
Authorized Officer of the corporate trustee or any individual
co-trustee.
Available
Excess Interest:
Not
applicable.
Balloon
Loan:
A
Mortgage Loan with a Monthly Payment that does not fully amortize the principal
amount of such Mortgage Loan over its term to stated maturity and that requires
a substantial principal payment at maturity.
Balloon
Payment:
With
respect to any Balloon Loan, a payment of the unamortized principal balance
of
such Mortgage Loan in a single payment at the maturity of such Mortgage Loan
that is greater than the preceding Monthly Payment.
Basic
Documents:
This
Agreement, the Purchase Agreement, the Servicing Agreements, the Assignment
Agreements, the BFPT II Assignment Agreement, the Diligence Agreement, and
any
other agreements relating to the servicing of the Mortgage Loans, the Cap
Agreement, the Swap Agreement and any amendment or supplement to any such
document.
Basis
Risk Payment:
With
respect to any Distribution Date and the Group 1 Certificates and any Class
of
LIBOR Certificates, an amount equal to the sum of (i) any Basis Risk Shortfall,
(ii) any Unpaid Basis Risk Shortfall, and (iii) any amount required to be
deposited into the Reserve Fund in order to satisfy the Reserve Fund Requirement
for such Distribution Date, less any amounts received by the Trust Fund pursuant
to the Cap Agreement, or received by the Supplemental Interest Trust pursuant
to
the Swap Agreement; provided,
however,
that the
amount of the Basis Risk Payment for any Distribution Date shall not exceed
the
amount of Excess Cashflow otherwise distributable to the Class X Certificates
pursuant to Section 6.05(f)(x).
Basis
Risk Shortfall:
With
respect to any Distribution Date and any Class of Group 1 Certificates and
LIBOR
Certificates, the amount, if any, by which (i) the amount of interest for such
Class calculated on the basis of the applicable Interest Rate but without regard
to the Pool 1 Available Funds Cap, the Pool 2 Available Funds Cap or the
Subordinate Available Funds Cap, as applicable, exceeds (ii) the aggregate
amount of interest distributable on such Class on such date, calculated on
the
basis of the Pool 1 Available Funds Cap, the Pool 2 Available Funds Cap or
the
Subordinate Available Funds Cap, as applicable.
BFPT
II:
Bayview
Financial Property Trust II, a Delaware statutory trust.
BFPT
II Assignment Agreement:
The
assignment agreement dated as of July 1, 2007, between BFPT II and the
Depositor, as such may be amended or supplemented from time to
time.
22
BLS:
Bayview
Loan Servicing, LLC, a Delaware limited liability company, or any successor
thereto.
Book-Entry
Certificate:
Any
Certificate registered in the name of the Depository or its
nominee.
Business
Day:
Any day
other than a Saturday or a Sunday, or another day on which banks in the State
of
Maryland, the State of Minnesota, or the State of New York (or such other states
in which the Corporate Trust Office or the principal offices of the Master
Servicer or any Servicer are subsequently located, as specified in writing
by
such party to the other parties hereto) are required, or authorized by law,
to
close.
Cap
Agreement:
The
interest rate cap agreement entered into by the Trustee on behalf of
Certificateholders, which agreement provides for payment by the Cap Provider
to
the Trust Fund subject to the conditions provided therein, together with any
schedules or other agreements relating thereto, attached hereto as part of
Exhibit G-1.
Cap
Collateral Account:
The
Eligible Account maintained by the Trustee in accordance with the provisions
of
Section 6.11(b).
Cap
Credit Support Annex:
The
credit support annex to the Cap Agreement dated as of July 27, 2007, between
the
Trustee, on behalf of the Supplemental Interest Trust, and the Cap
Provider.
Cap
Provider:
The
counterparty (or any guarantor) to the Trustee required to make payments to
the
Trust Fund under the Cap Agreement, and any successor in interest or assigns.
Initially, the Cap Provider shall be Barclays Bank PLC.
Carryforward
Interest:
With
respect to any Distribution Date and to each Class of Certificates (other than
the Class A-IO, Class P and Class X Certificates and the Residual Certificates)
and any Component of the Class A-IO Certificates, the amount, if any, by which
(i) the sum of (x) Current Interest for such Class or Component for the
immediately preceding Distribution Date and (y) any unpaid Carryforward
Interest for
such
Class or Component from previous Distribution Dates exceeds (ii) the amount
distributed in respect of interest on such Class or Component on such
immediately preceding Distribution Date. Carryforward
Interest with respect to the Class A-IO Certificates and any Distribution Date
will equal the aggregate Carryforward Interest on the Components of the Class
A-IO Certificates for such Distribution Date.
CERCLA:
The
Comprehensive Environmental Response, Compensation and Liability Act of
1980.
Certificate:
Any of
the Certificates issued pursuant to this Agreement, substantially in the forms
attached hereto as Exhibit A.
Certificate
Distribution Account:
The
separate Eligible Account established and maintained by the Trustee pursuant
to
Section 6.02(a).
23
Certificate
Group:
Each of
the Group 1 Certificates and the Group 2 Certificates.
Certificate
Owner
or
Owner:
With
respect to a Book-Entry Certificate, the Person who is the beneficial owner
of
such Certificate as reflected on the books and records of the Depository or
on
the books of a Direct Participant or on the books of an Indirect Participant
for
which a Direct Participant acts as agent.
Certificate
Register:
The
register maintained pursuant to Section 5.02 hereof.
Certificate
Registrar:
The
registrar specified in Section 5.02 hereof.
Certificateholder
or
Holder.
The
person in whose name a Certificate is registered in the Certificate
Register.
Civil
Relief Act:
The
Servicemembers Civil Relief Act, as such may be amended from time to time,
and
similar state and local laws and regulations.
Civil
Relief Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of interest collectible thereon as a result of application of the Civil
Relief Act, any amount by which interest collectible on such Mortgage Loan
for
the Due Date in the related Due Period is less than interest accrued thereon
for
the applicable one-month period at the Mortgage Rate without giving effect
to
such reduction.
Class:
Any
Certificates having the same class designation.
Class
1-A5 Priority Amount:
With
respect to any Distribution Date, the product of (a) the applicable Class 1-A5
Lockout Percentage, (b) a fraction, the numerator of which is equal to the
Class
Principal Balance of the Class 1-A5 Certificates immediately prior to such
Distribution Date and the denominator of which is equal to the sum of the Class
Principal Balances of the Group 1 Certificates immediately prior to such
Distribution Date and (c) any amounts to be distributed to the Group 1
Certificates on such Distribution Date pursuant to Sections 6.05(d)(i)(A)(2)(b),
6.05(d)(i)(B)(3), 6.05(d)(ii)(C), 6.05(e)(i) and/or 6.05(e)(ii) for such
Distribution Date.
Class
1-A5 Lockout Percentage:
With
respect to any Distribution
Date, the applicable percentage specified below with respect to such
Distribution Date:
|
Distribution
Date
|
Class
1-A5
Lockout
Percentage
|
|
August
2007 through July 2010
|
0%
|
|
August
2010 through July 2012
|
45%
|
|
August
2012 through July 2013
|
80%
|
|
August
2013 through July 2014
|
100%
|
|
August
2014 and thereafter
|
300%
|
24
Class
A-IO Termination Amount:
With
respect to the Class A-IO Certificates and the date of termination of the Trust
Fund pursuant to Section 10.02(a) or (b), an amount equal to the sum of (i)
Current Interest thereon for such Distribution Date, (ii) the present value
of
the remaining scheduled distributions on the Class A-IO Certificates, calculated
on the basis of a discount rate equal to 6.137% per annum and (iii) any
previously unpaid accrued interest.
Class
Notional Balance:
With
respect to each Distribution Date, the related Accrual Period and the Class
A-IO
Certificates, the sum of the Component Notional Balances of the A-IO(1)
Component and the A-IO(2) Component for such Distribution Date.
Class
P Distribution Amount:
With
respect to each Distribution Date, all prepayment premiums or penalties or
yield
maintenance payments received by the Servicers with respect to the Mortgage
Loans so identified on the Mortgage Loan Schedule and remitted to the Master
Servicer as provided in the applicable Servicing Agreement during the related
Prepayment Period in connection with any Prepayments in Full or partial
Principal Prepayments.
Class
P Principal Amount:
As of
the Closing Date, $100.00.
Class
Principal Balance:
With
respect to any Class of Certificates other than the Class P Certificates
entitled to distributions in respect of principal and any date, the initial
aggregate principal balance of the Certificates of such Class less the sum
of
(i) all amounts previously distributed to Holders of the Certificates of such
Class with respect to principal pursuant to Section 6.05 hereof and (ii) in
the
case of the Subordinate Certificates, all Applied Loss Amounts previously
allocated to such Class pursuant to Section 6.07; provided,
however,
that on
any Distribution Date on which a Subsequent Recovery is distributed, the Class
Principal Balance of any Class of Subordinate Certificates then outstanding
to
which an Applied Loss Amount has been applied will be increased, in order of
seniority, by an amount equal to the lesser
of (i)
any Deferred Principal Amount for each such Class immediately prior to such
Distribution Date and (ii) the total amount of any Subsequent Recovery
distributed on such date to Certificateholders, after application (for this
purpose) to more senior Classes of Subordinate Certificates.
Class
X Distributable Amount:
On any
Distribution Date, the amount of interest that has accrued on the Class X
Notional Balance, as described in the Preliminary Statement to this Agreement,
but that has not been distributed prior to such date. In addition, such amount
shall include the initial Overcollateralization Amount of $16,748,039.85 (less
$100 of such amount allocated to the Class P Certificates) to the extent such
amount has not been distributed on an earlier Distribution Date as part of
the
Overcollateralization Release Amount.
Class
X Excess Cap Amount:
As
defined in Section 6.12(b).
Closing
Date:
July
27, 2007.
Code:
The
Internal Revenue Code of 1986, as amended.
Collection
Account:
The
separate Eligible Account established and maintained by the Master Servicer,
on
behalf of the Trustee, pursuant to Section 4.07.
25
Combined
Loan-to-Value Ratio:
With
respect to any Junior Mortgage Loan, the fraction, expressed as a percentage,
the numerator of which is equal to the Principal Balance of such Mortgage Loan
as of the Cut-off Date, plus
the
aggregate outstanding principal balance of the mortgage loan senior thereto,
and
the denominator of which is equal to the value of the related Mortgaged Property
on the basis of (i) the lesser
of the
appraised value at origination or the sales price of such Mortgaged Property
or
(ii) a broker price opinion prepared after origination.
Commission:
The
United States Securities and Exchange Commission.
Compensating
Interest:
With
respect to any Distribution Date, an amount equal to the lesser
of (i)
the aggregate of the Master Servicing Fees payable to the Master Servicer with
respect to all Mortgage Loans for such Distribution Date and (ii) the aggregate
of prepayment interest shortfalls with respect to Prepayments in Full on any
Non-Servicer Obligated Mortgage Loans for such Distribution Date.
Component:
Each of
the A-IO(1) Component and the A-IO(2) Component of the Class A-IO
Certificates.
Component
Interest Rate:
With
respect to the A-IO(1) Component and (a) any Distribution Date up to and
including the Distribution Date in January 2010, the lesser
of (i)
the applicable “A-IO(1) Component Interest Rate” for such Component set forth on
Exhibit F hereto and (ii) the A-IO(1) Component Net Funds Cap for such
Distribution Date and (b) any Distribution Date thereafter, zero. With respect
to the A-IO(2) Component and (a) any Distribution Date up to and including
the
Distribution Date in January 2010, the lesser
of (i)
the applicable “A-IO(2) Component Interest Rate” for such Component set forth on
Exhibit F hereto and (ii) the A-IO(2) Component Net Funds Cap for such
Distribution Date and (b) any Distribution Date thereafter, zero.
Component
Notional Balance:
With
respect to any Distribution Date and each of the A-IO(1) Component and the
A-IO(2) Component, the applicable notional balance for such Component set forth
on Exhibit F hereto.
Control:
The
meaning specified in Section 8-106 of the New York UCC.
Convertible
Mortgage Loan:
Any
Adjustable Rate Mortgage Loan listed, together with the applicable purchase
price percentage, on Schedule I-D hereto, which by its terms grants to the
related Mortgagor the option to convert the interest rate borne by such Mortgage
Loan from an adjustable interest rate to a fixed interest rate.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
26
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
shares of the Cooperative Corporation.
Cooperative
Shares:
Shares
issued by a Cooperative Corporation.
Corporate
Trust Office:
The
office of the Trustee performing the corporate trust services to be performed
under the Basic Documents, which shall initially be located at 00 Xxxxxxxxxx
Xxxxxx, Mailcode: EP-MN-WS3D, Xx. Xxxx, Xxxxxxxxx 00000, and at any time
thereafter shall be the office designated by the Trustee to the other parties
hereto in writing.
Corresponding
Class:
The
Class of Certificates that corresponds to a class of interests in REMIC 3 or
REMIC 4, as applicable.
Corresponding
REMIC 3 A-IO:
With
respect to each Lower Tier Interest in REMIC 4 having an “A-IO-1” in its
Class
designation, the Class of Lower Tier Interest in REMIC 3 having an “A-IO-1” in
its Class designation that has the same numeric designation. With respect to
each Lower Tier Interest in REMIC 4 having an “A-IO-2” in its Class designation,
the Class of Lower Tier Interest in REMIC 3 having an “A-IO-2” in its Class
designation that has the same numeric designation.
Cross-Collateralized
Mortgage Loan:
Any
Mortgage Loan identified on the Mortgage Loan Schedule as cross-collateralized
and cross-defaulted with one or more other Mortgage Loans.
Cumulative
Loss Trigger Event:
A
Cumulative Loss Trigger Event shall have occurred with respect to any
Distribution Date if the fraction, expressed as a percentage, obtained by
dividing (i) the aggregate amount of cumulative Realized Losses incurred on
the
Mortgage Loans from the Cut-off Date through the last day of the related Due
Period by (ii) the Cut-off Date Aggregate Pool Balance, exceeds the applicable
percentages set forth below with respect to such Distribution Date:
|
Distribution
Date
|
Loss
Percentage
|
|
August
2010 through July 2011
|
2.65%
for the first month, plus an additional 1/12th of 1.55% for each
month
thereafter.
|
|
August
2011 through July 2012
|
4.20%
for the first month, plus an additional 1/12th of 0.80% for each
month
thereafter.
|
|
August
2012 through July 2013
|
5.00%
for the first month, plus an additional 1/12th of 0.25% for each
month
thereafter.
|
|
August
2013 and thereafter
|
5.25%
|
27
Cumulative
Realized Loss Percentage:
Not
applicable.
Current
Interest:
With
respect to each Class of Certificates (other than the Residual Certificates
and
the Class A-IO, Class X and Class P Certificates) and any Component of the
Class
A-IO Certificates and any Distribution Date, the aggregate amount of interest
accrued during the applicable Accrual Period at the applicable Interest Rate
on
the Class Principal Balance of such Class or the Component Notional Balance
of
such Component, as applicable, immediately prior to such Distribution Date.
Current Interest with respect to the Class A-IO Certificates and any
Distribution Date will equal the aggregate Current Interest on the Components
of
such Class for such Distribution Date.
Custodial
Account:
The
custodial account maintained by a Servicer pursuant to a Servicing
Agreement.
Custodian
Fee:
With
respect to each Distribution Date, the product of the Custodian Fee Rate and
the
Aggregate Pool Balance as of the opening of business on the first day of the
related Due Period (or, in the case of the first Distribution Date, as of the
Cut-off Date).
Custodian
Fee Rate:
0.0030%
per annum.
Cut-off
Date:
July 1,
2007.
Cut-off
Date Aggregate Pool Balance:
$385,049,039.85.
Debt:
For any
Person, (a) indebtedness of such Person for borrowed money, (b) obligations
of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(c) obligations of such Person to pay the deferred purchase price of property
or
services, (d) obligations of such Person as lessee under leases which have
been
or should be, in accordance with GAAP, recorded as capital leases, (e)
obligations secured by any lien or other charge upon property or assets owned
by
such Person, even though such Person has not assumed or become liable for the
payment of such obligations, (f) obligations of such Person under direct or
indirect guaranties in respect of, and obligations (contingent or otherwise)
to
purchase or otherwise acquire, or otherwise to assure a creditor against loss
in
respect of, indebtedness or obligations of others of the kinds referred to
in
clauses (a) through (e) above, and (g) liabilities in respect of unfunded vested
benefits under plans covered by ERISA.
Defaulting
Party:
As
defined in the Swap Agreement.
Deferred
Principal Amount:
With
respect to any Distribution Date and to any Class of Subordinate Certificates,
the amount, if any, by which (i) the aggregate of Applied Loss Amounts
previously applied in reduction of the Class Principal Balance thereof, together
with interest thereon at the applicable Interest Rate, exceeds (ii) the sum
of
(a) the aggregate of amounts previously distributed on such Class in
reimbursement of such amounts and (b) the amount by which the Class Principal
Balance of such Class has been increased due to any Subsequent
Recovery.
28
Deficient
Valuation:
With
respect to any Mortgage Loan, the dollar amount of any reduction in the
principal balance owed by the related Mortgagor, as ordered by a court in
connection with a bankruptcy proceeding with respect to the related
Mortgagor.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Qualified Substitute Mortgage
Loan.
Delinquency
Advance:
With
respect to the Master Servicer, as defined in Section 4.26(a) hereof, and with
respect to any Servicer, any advance of funds in respect of a delinquent Monthly
Payment made pursuant to the terms of the applicable Servicing
Agreement.
Delinquency
Event:
A
Delinquency Event will have occurred with respect to any Distribution Date
if
the Rolling Three Month Delinquency Rate as of the last day of the immediately
preceding calendar month exceeds 11.75%,
provided
that for
purposes of determining a Delinquency Event, each Distribution Date shall be
deemed to occur on the 28th
calendar
day of the related month, regardless whether such day is a Business
Day.
Depositor:
Bayview
Financial Securities Company, LLC, a Delaware limited liability company, and
its
successors and assigns.
Depository:
The
Depository Trust Company, 0 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and any
successor Depository hereafter named.
Determination
Date:
With
respect to any Distribution Date, the 18th day of the month in which such
Distribution Date occurs, or if such day is not a Business Day, the immediately
preceding Business Day.
Diligence
Agreement:
The
mortgage loan diligence agreement dated July 1, 2007, between the Seller, as
agent, and the Depositor, as such may be amended or supplemented from time
to
time, relating to the Re-sold Mortgage Loans.
Direct
Participant:
Any
broker-dealer, bank or other financial institution for which the Depository
holds the Book-Entry Certificates from time to time as a securities
depository.
Directly
Operate:
With
respect to any REO Property, the furnishing or rendering of services to the
tenants thereof that are not (within the meaning of Treasury Regulation Section
1.512(b)-1(c)(5)) customarily provided to the tenants in connection with the
rental of space for occupancy, the management or operation of such REO Property,
the holding of such REO Property primarily for sale to customers in the ordinary
course of a trade or business, the performance of any construction work thereon
or any use of such REO Property in a trade or business, in each case other
than
through an Independent Contractor; provided,
however,
that
the Servicer shall not be considered to Directly Operate an REO Property solely
because the Servicer establishes rental terms, chooses tenants, enters into
or
renews leases, deals with taxes and insurance, or makes decisions as to repairs
(of the type that would be deductible under Section 162 of the Code) or capital
expenditures with respect to such REO Property or take other activities
consistent with Section 1.856-4(b)(5)(iii) of the Treasury
Regulations.
29
Disqualified
Organization:
A
“disqualified organization” as defined in Section 860E(e)(5) of the
Code.
Distribution
Date:
The
28th calendar day of each month (or the immediately succeeding Business Day
if
such day is not a Business Day), commencing in August 2007.
Dollar
and
$:
Lawful
currency of the United States of America.
Due
Date:
The day
of the calendar month in which the Monthly Payment on a Mortgage Loan is
due.
Due
Period:
The
period from and including the second day of the calendar month preceding the
calendar month in which any Distribution Date occurs to and including the first
day of the calendar month in which such Distribution Date occurs (or such other
period as specified in the applicable Servicing Agreement) (provided
that for
purposes of determining the Due Period, each Distribution Date shall be deemed
to occur on the 28th
calendar
day of the related month, regardless whether such day is a Business
Day).
XXXXX:
As
defined in Section 4.31(a) hereof.
Effective
Loan-to-Value Ratio:
With
respect to any Mortgage Loan as of any date of determination, a fraction,
expressed as a percentage, the numerator of which is equal to the Principal
Balance of such Mortgage Loan as of such date, less the amount of Additional
Collateral required to secure such Mortgage Loan at the time of origination,
if
any, and the denominator of which is equal to the value of the related Mortgaged
Property on the basis of (i) the lesser
of the
appraised value at origination or the sales price of such Mortgaged Property
or
(ii) a broker price opinion prepared after origination.
Electronic
Ledger:
The
electronic master record of the Mortgage Loans maintained by the Master Servicer
or any Servicer.
Eligible
Account:
With
respect to the Cap Collateral Account, the Swap Account, the Swap Collateral
Account, the Swap Replacement Receipts Account, the Swap Termination Receipts
Account and the Reserve Fund: (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 at the time any amounts are held on deposit therein (a) “P-1” by Xxxxx'x
(or at least “A2” if such institution has no short-term rating from Xxxxx’x),
(b) at least “A-1” by S&P (or at least “A+” if such institution has no
short-term rating from S&P) and (c) “F1” by Fitch (with respect to the
preceding clauses (a), (b) and (c), in each case if such rating agency is a
Rating Agency, and such applicable ratings from S&P, Fitch and Xxxxx’x, the
“Required Ratings”), provided,
in each
case, that following a downgrade, withdrawal or suspension of any such
institution’s rating below any applicable Required Rating, each such account
shall promptly (and in any case within not more than 30 calendar days in the
case of Xxxxx’x and Fitch, or 60 calendar days in the case of S&P) be moved
to another institution which has the Required Ratings, or to one or more
segregated trust accounts as provided in clause (ii); (ii) a segregated trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution or trust company, which institution or company
has capital and surplus of not less than $50 million, acting in its fiduciary
capacity; or (iii) an account or accounts 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
Trustee.
30
With
respect to each Eligible Account other than the Cap Collateral Account, the
Swap
Account, the Swap Collateral Account, the Swap Replacement Receipts Account,
the
Swap Termination Receipts Account and the Reserve Fund: (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 at the time any amounts are held on deposit
therein (a) “P-1” by Xxxxx'x (or at least “A2” if such institution has no
short-term rating from Xxxxx’x), (b) at least “A-2” by S&P (or at least
“BBB+” if such institution has no short-term rating from S&P) and (c) “F1”
by Fitch (with respect to the preceding clauses (a), (b) and (c), in each case
if such rating agency is a Rating Agency, and such applicable ratings from
S&P, Fitch and Xxxxx’x, the “Required Ratings”), provided,
in each
case, that following a downgrade, withdrawal or suspension of any such
institution’s rating below any applicable Required Rating, each such account
shall promptly (and in any case within not more than 30 calendar days) be moved
to another institution which has the Required Ratings, or to one or more
segregated trust accounts as provided in clause (ii); (ii) a segregated trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution or trust company, which institution or company
has capital and surplus of not less than $50 million, acting in its fiduciary
capacity; or (iii) an account or accounts 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 Trustee.
Eligible
Accounts may bear interest.
Eligible
Investments:
Any of
the following (which may be purchased by or through the Trustee, the Master
Servicer or any of their respective Affiliates):
(i) obligations
of, or guaranteed as to the full and timely payment of principal and interest
by, the United States or obligations of any agency or instrumentality thereof,
when such obligations are backed by the full faith and credit of the United
States;
(ii) repurchase
agreements on obligations specified in clause (a); provided
that the
short-term debt obligations of the party agreeing to repurchase are rated no
less than F1 by Fitch, A-1 by S&P and P-1 by Xxxxx’x (in each case if such
rating agency is a Rating Agency);
(iii) federal
funds, certificates of deposit, time deposits and bankers’ acceptances (which
shall each have an original maturity of not more than 90 days and, in the case
of bankers’ acceptances, shall in no event have an original maturity of more
than 365 days) of any United States depository institution or trust company
incorporated under the laws of the United States or any state; provided
that the
short-term obligations of such depository institution or trust company are
rated
no less than F1 by Fitch, A-1 by S&P and P-1 by Xxxxx’x (in each case if
such rating agency is a Rating Agency);
31
(iv) commercial
paper (having original maturities of not more than 30 days) of any corporation
incorporated under the laws of the United States or any state thereof which
on
the date of acquisition is rated no less than F1 by Fitch, A-1 by S&P and
P-1 by Xxxxx’x (in each case if such rating agency is a Rating Agency);
(v) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
short-term credit rating from each Rating Agency, at the time of investment
or
the contractual commitment providing for such investment, no less than F1 by
Fitch, A-1 by S&P and P-1 by Xxxxx’x (in each case if such rating agency is
a Rating Agency); provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the Aggregate Pool Balance; provided,
further,
that
such securities will not be Eligible Investments if they are identified as
being
under review with negative implications from any Rating Agency;
(vi) securities
of money market funds or mutual funds rated AAAm or AAAm-G by S&P, AAA or
better by Fitch and Aa1 by Xxxxx’x (in each case if such rating agency is a
Rating Agency) (including any such funds for which the Trustee in its individual
capacity or the Master Servicer, or any of their respective Affiliates, receives
compensation as administrator, sponsor, agent or the like); and
(vii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security, or other investment rated in the highest
rating category by each Rating Agency or otherwise approved in writing by each
Rating Agency;
provided
that (A)
such obligation or security is held for a temporary period pursuant to Treasury
Regulation Section 1.860G-2(g)(1) and (B) no instrument described above is
permitted to evidence either the right to receive (a) only interest or only
principal with respect to 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 provided a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations; and provided,
further,
that no
instrument described above may be purchased at a price greater than par if
such
instrument may be prepaid or called at a price less than its purchase price
prior to stated maturity.
Enhancement
Percentage:
With
respect to the Group 1 Certificates and each Class of LIBOR Certificates and
any
Distribution Date, the fraction, expressed as a percentage, the numerator of
which is the sum of (i) the aggregate Class Principal Balance of each Class
of
Subordinate Certificates having a lower priority of distribution than such
Class
after giving effect to application of the Principal Distribution Amount for
each
Mortgage Pool for such Distribution Date, (ii) the Overcollateralization Amount
(which shall be calculated on the basis of the assumption that the Principal
Distribution Amounts with respect to both Mortgage Pools have been distributed
on such Distribution Date and no Trigger Event has occurred), and (iii) amounts
on deposit in the Reserve Fund after giving effect to withdrawals therefrom
on
such date, and the denominator of which is the Aggregate Pool Balance for such
Distribution Date.
32
Entitlement
Holder:
The
meaning specified in Section 8-102(a)(7) of the New York UCC.
Entitlement
Order:
The
meaning specified in Section 8-102(a)(8) of the New York UCC (i.e.,
generally, orders directing the transfer or redemption of any Financial
Asset).
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
ERISA-Restricted
Certificates:
Each of
the Subordinate Certificates and the Class X, Class P, Class RL and Class R
Certificates, and any Senior Certificate that is not rated at least “AA-”, or
its equivalent, at the time of its acquisition.
ERISA-Restricted
Trust Certificate:
Any
Senior
Certificate
that is rated at least “AA-”, or its equivalent, at the time of its
acquisition.
Event
of Master Servicer Default:
As
defined in Section 4.17.
Excess
Cap Amount:
Not
applicable.
Excess
Cashflow:
With
respect to any Distribution Date, the sum of (a) Pool 1 Excess Interest and
Pool
2 Excess Interest for such Distribution Date, (b) the Overcollateralization
Release Amount for such Distribution Date and (c) any amounts of Principal
Distribution Amount remaining after application pursuant to Sections
6.05(d)(i)(A)(9), (B)(9) and (ii)(C).
Excess
Interest:
With
respect to any Distribution Date, the sum of Pool 1 Excess Interest and Pool
2
Excess Interest for such Distribution Date.
Exchange
Act:
The
Securities and Exchange Act of 1934, as amended.
Excluded
Servicing Obligations:
As
defined in Section 4.01 hereof.
Excluded
Trust Assets:
As
defined in the Preliminary Statement to this Agreement.
Xxxxxx
Xxx:
Xxxxxx
Xxx, the entity formerly known as the Federal National Mortgage
Association.
FDIC:
The
Federal Deposit Insurance Corporation.
33
FHA:
The
Federal Housing Administration.
FHA
Approved Mortgagee:
A
corporation or other entity approved as a mortgagee by FHA under the Housing
Act
and applicable FHA Regulations, and eligible to own and service, as applicable,
loans insured by the FHA.
FHA
Insurance:
An
insurance policy granted by the FHA with respect to any Mortgage
Loan.
FHA
Mortgage Loan:
Not
applicable.
FHA
Regulations:
Regulations promulgated by HUD under the Housing Act, codified in 24 Code of
Federal Regulations, and other HUD issuances relating to mortgage loans insured
by the FHA, including, without limitation, related handbooks, circulars, notices
and mortgagee letters.
FHA/VA
Claim Proceeds:
Either
(i) the amount of insurance proceeds received from the FHA under FHA Insurance
in the event of a default with respect to an FHA Mortgage Loan or (ii) the
amount of proceeds received from the VA under a VA Guaranty in the event of
a
default with respect to a VA Mortgage Loan.
Final
Scheduled Distribution Date:
With
respect to each Class of Certificates (other than the Class A-IO Certificates),
the Distribution Date in August 2037; in the case of the Class A-IO
Certificates, the Distribution Date in January 2010.
Financial
Asset:
The
meaning specified in Section 8-102(a)(9) of the New York UCC.
Fitch:
Fitch,
Inc., or any successor thereto.
Fixed
Rate Mortgage Loan:
A
Mortgage Loan that has a fixed Mortgage Rate, identified as such on the Mortgage
Loan Schedule.
Foreclosure
Restricted Loan:
Each
Mortgage Loan listed on Schedule I-I hereto and with respect to which
foreclosure (or deed-in-lieu of foreclosure or similar) proceedings are
instituted on or before the first anniversary of the Closing Date.
Form
8-K Disclosure Information:
As
defined in Section 4.31(a).
Xxxxxxx
Mac:
Xxxxxxx
Mac, the entity formerly known as the Federal Home Loan Mortgage
Corporation.
Full
Recourse Servicing Agreement:
Not
applicable.
GAAP:
Generally accepted accounting principles as in effect in the United States,
consistently applied, as of the date of such application.
34
Governmental
Authority:
The
United States of America, any state, local or other political subdivision
thereof and any entity exercising executive, legislative, judicial, regulatory
or administrative functions thereof or pertaining thereto.
Gross
Prepayment Interest Excess:
With
respect to any Distribution Date and the Non-Servicer Obligated Mortgage Loans,
the excess of (x) the aggregate amount of interest paid in respect of any such
Mortgage Loans that were the subject of a Prepayment in Full during the related
Prepayment Period and any other amounts allocable to interest received in
respect of such Mortgage Loans that are distributable on such Distribution
Date
over (y) the interest portion of the Monthly Payment due on such Mortgage Loans
during the related Due Period.
Gross
Prepayment Interest Shortfall:
With
respect to any Distribution Date and the Non-Servicer Obligated Mortgage Loans,
the excess of (x) the interest portion of the Monthly Payment due on any such
Mortgage Loans during the related Due Period that were the subject of a
Prepayment in Full during the related Prepayment Period over (y) the aggregate
amount of interest paid by related Mortgagors in respect of the amounts of
such
Prepayments in Full and any other amounts allocable to interest received from
such Mortgagors that are distributable on such Distribution Date. A Gross
Prepayment Interest Shortfall will not result from a partial prepayment of
a
Mortgage Loan.
Group
1 Certificate:
Any
Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4 or Class 1-A5
Certificate.
Group
1 Senior Principal Distribution Percentage:
With
respect to any Distribution Date and the Group 1 Certificates, the percentage
equivalent of a fraction, the numerator of which is the Principal Remittance
Amount for Pool 1 and the denominator of which is the sum of the Principal
Remittance Amounts for Pool 1 and Pool 2 for such Distribution
Date.
Group
2 Certificate:
Any
Class 2-A1, Class 2-A2, Class 2-A3 or Class 2-A4 Certificate.
Group
2 Senior Allocation Percentage:
With
respect to any Distribution Date and the Group 2 Certificates, the percentage
equivalent of a fraction, the numerator of which is the aggregate Class
Principal Balance of the Class 2-A1, Class 2-A2 and Class 2-A3 Certificates
immediately prior to such Distribution Date and the denominator of which is
the
aggregate Class Principal Balance of the Class 2-A1, Class 2-A2, Class 2-A3
and
Class 2-A4 Certificates immediately prior to such Distribution
Date.
Group
2 Senior Principal Distribution Percentage:
With
respect to any Distribution Date and the Group 2 Certificates, the percentage
equivalent of a fraction, the numerator of which is the Principal Remittance
Amount for Pool 2 and the denominator of which is the sum of the Principal
Remittance Amounts for Pool 1 and Pool 2 for such Distribution
Date.
Holdback
Amount:
With
respect to any Holdback Mortgage Loan, any portion of the indebtedness evidenced
by the related Mortgage Note that is not disbursed to the related Mortgagor,
and
is held in a custodial account established by the Servicer for the benefit
of
the Trustee, as identified on Schedule I-E attached hereto.
35
Holdback
Mortgage Loan:
Each
Mortgage Loan listed on Schedule I-E attached hereto, as amended from time
to
time pursuant to the terms of this Agreement.
Housing
Act:
The
National Housing Act of 1934, as amended.
HUD:
United
States Department of Housing and Urban Development.
Independent:
When
used with respect to any Independent Public Accountant, a Person who is
“independent” within the meaning of Rule 2-01(b) of the Commission’s Regulation
S-X. When used with respect to any other Person, a Person who (a) is in fact
independent of another specified Person and any Affiliate of such other Person,
(b) does not have any material direct financial interest in such other Person
or
any Affiliate of such other Person, (c) is not connected with such other Person
or any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (d) is not a member of the immediate family of a Person defined in clause
(b) or (c) above.
Independent
Contractor:
(i) Any
Person (other than the Subservicer) that would be an “independent contractor”
within the meaning of Section 856(d)(3) of the Code if the Servicer 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, or 35% or more of the aggregate of all
Classes of the Certificates), so long as the Servicer does not receive or derive
any income from such Person and provided
that the
relationship between such Person and the Servicer is at arm’s length, all within
the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other
Person (including the Subservicer) if the Servicer has received an Opinion
of
Counsel, which Opinion of Counsel shall be an expense of the Servicer, 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.
Independent
Public Accountant:
Any of
(a) Deloitte & Touche LLP, (b) PricewaterhouseCoopers, LLP, (c) Ernst &
Young LLP and (d) KPMG LLP (and any successors of the foregoing); provided
that
such firm must be Independent with respect to the Master Servicer or any
Servicer, as the case may be, within the meaning of the Securities
Act.
Index:
With
respect to each Adjustable Rate Mortgage Loan, the index specified in the
related Mortgage Note or installment sale contract that, when added to the
gross
margin specified therein, equals the Mortgage Rate thereon.
Indirect
Participant:
Any
financial institution for which any Direct Participant holds an interest in
a
Book-Entry Certificate.
Initial
Aggregate Certificate Principal Balance:
$368,301,000.
Initial
Overcollateralization Percentage:
4.35%.
36
Insurance
Fee Rate:
Not
applicable.
Insurance
Policy:
Any
hazard, title, flood, environmental or primary mortgage or other insurance
policy, including any Primary Mortgage Insurance Policy, relating to a Mortgage
Loan.
Insurance
Proceeds:
With
respect to any Distribution Date, all insurance proceeds received by the Master
Servicer or any Servicer during the related Prepayment Period (including,
without limitation, the proceeds of any hazard insurance, flood insurance or
title insurance policies, or Primary Mortgage Insurance Policies, and payments
made by the Master Servicer or any Servicer pursuant hereto in respect of a
deductible clause in any blanket policy) that are not Liquidation Proceeds,
that
are not applied to the restoration or repair of the related Property or other
servicing expenses or released to the related Mortgagor in accordance with
the
normal servicing procedures of the Master Servicer or such Servicer, and were
applied by the Master Servicer or such Servicer to reduce the Principal Balance
of the related Mortgage Loan or to pay interest on the related Mortgage
Loan.
Interest:
Each
interest in a REMIC as designated in the Preliminary Statement to this
Agreement.
Interest-Only
Certificate:
Any
Class A-IO Certificate.
Interest
Rate:
With
respect to each Class of Certificates other than the Class X, Class P, Class
RL
and Class R Certificates, the per annum rate of interest applicable to
Certificates of such Class, as specified in the Preliminary Statement to this
Agreement.
Interest
Remittance Amount:
With
respect to each Mortgage Pool and any Distribution Date, to the extent conveyed
to the Trustee hereunder and received by the Master Servicer and to the extent
provided in this Agreement and the applicable Servicing Agreement, (a) the
sum
of (i) all interest collected (other than Payaheads) or advanced or otherwise
remitted in respect of Monthly Payments on the Mortgage Loans in such Mortgage
Pool during the related Due Period, other than any prepayment premiums or yield
maintenance payments, which will be distributed to the Class P Certificates
and
will not be available to make payments on any other Class of Certificates,
less
(x) the
Master Servicing Fee, the applicable Servicing Fees, the premium for any
lender-paid Primary Mortgage Insurance and the Retained Interest, if any, on
the
Mortgage Loans in such Mortgage Pool, (y) Outstanding Advances with respect
to
the Mortgage Loans in such Mortgage Pool and the applicable Pool Percentage
of
other amounts due to the Master Servicer, the Servicers or the Trustee (other
than the Trustee Fee and the Custodian Fee), in each case, to the extent
allocable to interest, and (z) any Net Prepayment Interest Excess for such
Distribution Date, (ii) any Compensating Interest paid by the Master
Servicer and any amounts paid by any Servicer in respect of prepayment interest
shortfalls on the Mortgage Loans in such Mortgage Pool with respect to such
Distribution Date, (iii) the portion of the Purchase Price allocable to interest
(less Outstanding Advances, to the extent allocable to interest, and other
amounts due the Master Servicer, the Servicers or the Trustee, to the extent
allocable to interest) of each Mortgage Loan that was purchased from such
Mortgage Pool during the related Prepayment Period, (iv) the portion of any
Substitution Amount allocable to interest and paid during the related Prepayment
Period with respect to the Mortgage Loans in such Mortgage Pool and (v) all
Net
Liquidation Proceeds, Insurance Proceeds and other recoveries collected and
remittances made during the related Prepayment Period with respect to the
Mortgage Loans in such Mortgage Pool (including proceeds of Additional
Collateral), to the extent allocable to interest, less Outstanding Advances,
with respect to the Mortgage Loans in such Mortgage Pool, to the extent
allocable to interest, and the applicable Pool Percentage of other amounts
due
the Master Servicer, the Servicers or the Trustee, to the extent allocable
to
interest, as reduced by (b) the applicable Pool Percentage of any expenses
of
the Trustee reimbursable pursuant to this Agreement and not reimbursed pursuant
to clauses (a)(i), (a)(iii) or (a)(v) above.
37
Investment
Company Act:
The
Investment Company Act of 1940, as amended.
Junior
Mortgage Loan:
Not
applicable.
Latest
Possible Maturity Date:
The
Distribution Date following the third anniversary of the scheduled maturity
date
of the Mortgage Loan having the latest scheduled maturity date as of the Closing
Date.
LIBOR:
With
respect to any Accrual Period other than the initial Accrual Period, the rate
for one month United States dollar deposits that appears on the Reuters screen
“LIBOR01” (or such other page as may replace Reuters screen “LIBOR01” for the
purpose of displaying London interbank offered rates of major banks) as of
11:00
a.m., London time, on the related LIBOR Rate Adjustment Date. If such rate
does
not appear on such page (or such other page as may replace that page on that
service, or if such service is no longer offered, such other service for
displaying one-month LIBOR or comparable rates as may be selected by the Master
Servicer), the rate will be the Reference Bank Rate. The “Reference Bank Rate”
will be determined on the basis of the rates at which deposits in U.S. Dollars
are offered by the reference banks (which shall be three major banks that are
engaged in transactions in the London interbank market, selected by the
Depositor) as of 11:00 a.m., London time, on the LIBOR Rate Adjustment Date
to
prime banks in the London interbank market for a period of one month in amounts
approximately equal to the aggregate principal balance of the LIBOR Certificates
then outstanding. The Master Servicer will request the principal London office
of each of the reference banks to provide a quotation of its rate. If at least
two such quotations are provided, the rate will be the arithmetic mean of the
quotations. If on such date fewer than two quotations are provided as requested,
the rate will be the arithmetic mean of the rates quoted by one or more major
banks in New York City, selected by the Master Servicer as of 11:00 a.m., New
York City time, on such date for loans in U.S. Dollars to leading European
banks
for a period of one month. If no such quotations can be obtained, the rate
will
be LIBOR for the prior Distribution Date.
LIBOR
for
the initial Accrual Period shall be 5.32%.
LIBOR
Business Day:
Any day
other than (i) a Saturday or a Sunday or (ii) a day on which banking
institutions in the city of London, England or in The City of New York, New
York
are required or authorized by law to be closed.
LIBOR
Certificate:
Any
Group
2 Certificate or Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class B-1 or Class
B-2 Certificate.
38
LIBOR
Rate Adjustment Date:
With
respect to any Accrual Period (other than the initial Accrual Period),
the
second LIBOR Business Day immediately prior to the commencement of such Accrual
Period.
Liquidated
Mortgage Loan:
With
respect to
any
Distribution Date, any Mortgage Loan in respect of which the related Servicer
or
the Master Servicer, as applicable, has determined, in accordance with the
servicing procedures specified herein and in the applicable Servicing Agreement,
as of the end of the related Due 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
Expenses:
Customary and reasonable out-of-pocket expenses exclusive of overhead which
are
incurred by a Servicer or the Master Servicer in connection with the liquidation
of any defaulted Mortgage Loan, such expenses, including, without limitation,
legal fees and expenses, and any Outstanding Advances expended by any Servicer
or the Master Servicer with respect to such Mortgage Loan.
Liquidation
Proceeds:
With
respect to any Liquidated Mortgage Loan, any amounts (including the proceeds
of
any Insurance Policy and the proceeds from the sale of REO Property, and
including any FHA/VA Claim Proceeds not retained by the applicable Servicer
pursuant to the related Servicing Agreement) recovered by the Master Servicer
or
any Servicer in connection with such Liquidated Mortgage Loan, whether through
trustee’s sale, foreclosure sale or otherwise, other than amounts required to be
paid to the Mortgagor pursuant to the terms of the applicable Mortgage Loan
or
otherwise pursuant to law.
Loan
Collateral:
With
respect to any Mortgage Loan, the related Mortgaged Property and any personal
property securing the related Mortgage Loan, including any lessor’s interest in
such property, whether characterized or recharacterized as an ownership or
security interest, and including any accounts or deposits pledged to secure
such
Mortgage Loan, and any Additional Collateral.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan as of any date of determination, the fraction,
expressed as a percentage, the numerator of which is equal to the Principal
Balance of such Mortgage Loan as of such date, and the denominator of which
is
equal to the value of the related Mortgaged Property on the basis of (i) the
lesser
of the
appraised value at origination or the sales price of such Mortgaged Property
or
(ii) a broker price opinion prepared after origination.
Loss
Amount:
With
respect to any Distribution Date, an amount equal to the aggregate of Realized
Losses incurred during the related Prepayment Period.
Manufactured
Home:
A new
or used unit of manufactured housing.
Manufactured
Housing Loan:
A
Mortgage Loan made to finance the purchase of a Manufactured Home.
Master
Servicer:
Xxxxx
Fargo Bank, N.A., or any successor or permitted assign under the terms of this
Agreement.
39
Master
Servicer Remittance Date:
With
respect to any Distribution Date, the Business Day immediately preceding such
Distribution Date.
Master
Servicer’s Monthly Report:
The
report containing the information described in Section 4.27 hereof.
Master
Servicing Fee:
Subject
to Section 4.13, with respect to each Distribution Date and each Mortgage Loan,
the product of the Master Servicing Fee Rate and the Principal Balance or
principal amount of such Mortgage Loan as of the start of the related Due Period
(or, in the case of the first Distribution Date, as of the Cut-off
Date).
Master
Servicing Fee Rate:
Subject
to Section 4.13, 0.015% per annum.
Maximum
Master Servicing Fee Rate:
0.035%
per annum.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment, has been
or
will be recorded in the name of MERS, as agent for the holder from time to
time
of the Mortgage Note.
Mixed
Use Property:
A
property occupied for both residential and commercial purposes.
Monthly
Payment:
The
scheduled monthly principal and interest payment on a Mortgage Loan for any
month, as such monthly payment may have been reduced by any Deficient Valuation.
The Monthly Payment on each Balloon Loan 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
Loan. The Monthly Payment for any Non-Monthly Mortgage Loan that provides for
payments at two-week intervals shall be deemed to include all bi-weekly payments
due on such Mortgage Loan during the related Due Period.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor thereto.
Mortgage:
The
written instrument creating a valid lien on real property or a Manufactured
Home, which instrument may be in the form of a mortgage, deed of trust, deed
to
secure debt or security deed, certificate of title or other instrument creating
a lien on or interest in the Loan Collateral; or, in the case of a Cooperative
Loan, the Security Agreement.
Mortgage
File:
As
defined in Section 2.01 hereof.
Mortgage
Loan:
(a) either
(i) a
fixed
rate closed-end (which term includes a revolving line of credit under which
no
additional amounts may be drawn and a Holdback Mortgage Loan under which
Holdback Amounts may be disbursed or applied to principal) mortgage loan and
promissory note or installment sale contract, including the right to payment
of
any interest or finance charges and other obligations of the Mortgagor with
respect thereto, listed on the Mortgage Loan Schedule and included as part
of
the Trust Fund; or
40
(ii) an
adjustable rate closed-end (which term includes a revolving line of credit
under
which no additional amounts may be drawn and a Holdback Mortgage Loan under
which Holdback Amounts may be disbursed or applied to principal) mortgage loan
and promissory note or installment sale contract, including the right to payment
of any interest or finance charges and other obligations of the Mortgagor with
respect thereto, listed on the Mortgage Loan Schedule and included as part
of
the Trust Fund;
(b) all
security interests or liens and real and personal property subject thereto
from
time to time purporting to secure payment by the related Mortgagor;
(c) all
guarantees, indemnities and warranties and proceeds thereof, proceeds of
insurance policies, Uniform Commercial Code financing statements, certificates
of title or other title documentation and other agreements or arrangements
of
whatever character from time to time supporting or securing payment of such
Mortgage Loan;
(d) all
collections with respect to any of the foregoing;
(e) all
Records with respect to any of the foregoing; and
(f) all
proceeds of any of the foregoing.
Mortgage
Loan Certificate:
With
respect to each Mortgage Loan with FHA Insurance, the mortgage insurance
certificate evidencing such insurance.
Mortgage
Loan Negative Amortization:
With
respect to any Adjustable Rate Mortgage Loan that provides for negative
amortization, an amount added to the principal balance of such Mortgage Loan
pursuant to the terms of the related Mortgage Note, generally equal to the
excess, if any, of interest accrued at the Mortgage Rate for any month over
the
greater of (a) the amount of the Monthly Payment for such month and (b) the
amount of interest received in respect of such month from the related
Mortgagor.
Mortgage
Loan Schedule:
As of
any date, the list of Mortgage Loans included in the Trust Fund, attached hereto
as Schedule I (and subdivided into Schedule I-A, Schedule I-B, Schedule I-C,
Schedule I-D, Schedule I-E, Schedule I-F, Schedule I-G and Schedule I-H). The
Mortgage Loan Schedule shall be prepared by or on behalf of the Depositor and
shall set forth the following information with respect to each Mortgage
Loan:
(i) the
Mortgage Loan identifying number;
(ii) the
Mortgagor’s name;
41
(iii) the
street address of the Mortgaged Property including the city, state and zip
code;
(iv) a
code
indicating whether the Mortgaged Property is owner-occupied;
(v) the
type
of residential dwelling, if any, constituting the Mortgaged
Property;
(vi) the
lien
position of such Mortgage Loan;
(vii) whether
such Mortgage Loan is a Balloon Loan;
(viii) whether
such Mortgage Loan is an Adjustable Rate Mortgage Loan or a Fixed Rate Mortgage
Loan;
(ix) the
original term to maturity (from origination or, if such Mortgage Loan has been
modified, from modification);
(x) the
stated remaining months to maturity from the Cut-off Date based on the
amortization schedule;
(xi) the
Loan-to-Value Ratio or, in the case of Junior Mortgage Loans, the Combined
Loan-to-Value Ratio, at origination;
(xii) the
current Loan-to-Value Ratio or, in the case of Junior Mortgage Loans, the
current Combined Loan-to-Value Ratio;
(xiii) the
Mortgage Rate as of the Cut-off Date;
(xiv) the
date
on which the first Monthly Payment was due on the Mortgage Loan;
(xv) the
Due
Date currently in effect;
(xvi) the
stated maturity date;
(xvii) the
amount of the Monthly Payment due on the first Due Date on or after the Cut-off
Date;
(xviii) the
last
Due Date on which a Monthly Payment was actually applied to the unpaid principal
balance;
(xix) the
original principal amount of the Mortgage Loan;
(xx) the
outstanding scheduled principal balance of the Mortgage Loan as of the close
of
business on the Cut-off Date;
(xxi) in
the
case of each Adjustable Rate Mortgage Loan, the gross margin;
42
(xxii) a
code
indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, rate/term refinancing, cash-out refinancing);
(xxiii) in
the
case of each Adjustable Rate Mortgage Loan, the maximum mortgage
rate;
(xxiv) in
the
case of each Adjustable Rate Mortgage Loan, the minimum mortgage
rate;
(xxv) the
Mortgage Rate at origination;
(xxvi) in
the
case of each Adjustable Rate Mortgage Loan, the periodic rate cap;
(xxvii) in
the
case of each Adjustable Rate Mortgage Loan, the Index;
(xxviii)
in the
case of each Adjustable Rate Mortgage Loan, the first adjustment date
immediately following the Cut-off Date;
(xxix) in
the
case of each Adjustable Rate Mortgage Loan, the rounding code (nearest
0.125%);
(xxx) a
code
indicating the Servicer and related Servicing Fee Rate;
(xxxi) a
code
indicating whether such Mortgage Loan is a Pool PMI-Insured Mortgage
Loan;
(xxxii) a
code
identifying the Pool PMI Insurer, if any;
(xxxiii) whether
such Mortgage Loan provides for negative amortization;
(xxxiv)
in the
case of a Holdback Mortgage Loan, the related Holdback Amount;
(xxxv) whether
prepayment premiums or penalties or yield maintenance payments are to be
retained by the related Servicer or allocated to the Class P
Certificates;
(xxxvi) if
such
Mortgage Loan is a Retained Interest Mortgage Loan, the Retained Interest
Rate;
(xxxvii) a
code
identifying if such Mortgage Loan is a Cross-Collateralized Mortgage Loan,
and
the related Mortgage Loan(s);
(xxxviii) a
code
identifying if such Mortgage Loan is an Additional Collateral Mortgage Loan;
and
(xxxix) the
Mortgage Pool in which such Mortgage Loan is included.
43
Mortgage
Note:
The
original executed promissory note evidencing the indebtedness of a Mortgagor
under a Mortgage Loan or if such Mortgage is not evidenced by a promissory
note,
the original executed document or other instrument primarily evidencing the
indebtedness of the Mortgagor under such Mortgage Loan.
Mortgage
Pool:
Either
Pool 1 or Pool 2.
Mortgage
Rate:
The
annual rate of interest borne by a Mortgage Note, which is set forth in such
Mortgage Note.
Mortgaged
Property:
Any of
(x) the fee simple interest (or, in the case of certain commercial real estate,
leasehold interest) in real property, together with improvements thereto and
any
fixtures, leases and other real or personal property securing the related
Mortgage Note, (y) the related Manufactured Home or (z) in the case of a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
Mortgagor:
With
respect to any Mortgage Loan, the Person or Persons primarily obligated to
make
payments in respect thereto.
M&T
Bank:
Manufacturers and Traders Trust Company, a New York banking corporation, or
any
successor thereto.
Multifamily
Property:
A
multifamily residential rental property consisting of five or more dwelling
units.
Net
Insurance Proceeds:
With
respect to any Mortgage Loan, any Insurance Proceeds received with respect
thereto net of amounts payable therefrom to the Master Servicer or any Servicer
in respect of Outstanding Advances relating to such Mortgage Loan.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, Liquidation Proceeds net of amounts
payable therefrom to the Master Servicer or any Servicer in respect of
Liquidation Expenses and Outstanding Advances relating to such Mortgage
Loan.
Net
Mortgage Rate:
With
respect to each Mortgage Loan, with respect to any date of determination, a
rate
per annum equal to the excess of the Mortgage Rate in effect as of the Due
Date
in the preceding calendar month over the sum of the applicable Servicing Fee
Rate, the Master Servicing Fee Rate, the Trustee Fee Rate, the Custodian Fee
Rate, any lender-paid primary mortgage insurance premium expressed as an annual
rate and, in the case of a Pool PMI-Insured Mortgage Loan, the Insurance Fee
Rate, and, with respect to Mortgage Loans identified on the Mortgage Loan
Schedule as “Retained Interest Mortgage Loans,” the applicable Retained Interest
Rate.
Net
Prepayment Interest Excess:
With
respect to any Distribution Date, the excess, if any, of the Gross Prepayment
Interest Excess with respect to the Non-Servicer Obligated Mortgage Loans for
such Distribution Date over the Gross Prepayment Interest Shortfall with respect
to such Mortgage Loans for such Distribution Date.
44
Net
Prepayment Interest Shortfall:
With
respect to any Distribution Date, the excess, if any, of any Prepayment Interest
Shortfalls with respect to the Mortgage Loans for such Distribution Date over
any amounts paid with respect to such shortfalls by the Servicers pursuant
to
the Servicing Agreements or by the Master Servicer pursuant to this
Agreement.
Net
Swap Payment:
With
respect to each Swap Payment Date, the sum of (i) the net payment required
to be
made pursuant to the terms of the Swap Agreement, which net payment shall not
take into account any Swap Termination Payment, and (ii) any unpaid amounts
due
on previous Swap Payment Dates and accrued interest thereon as provided in
the
Swap Agreement, as calculated by the Swap Counterparty and furnished to the
Master Servicer and the Trustee.
New
York UCC:
The
Uniform Commercial Code as in effect in the State of New York.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Non-Monthly
Mortgage Loan:
Each
Mortgage Loan listed on Schedule I-C hereto.
Non-permitted
Foreign Holder:
Any
Person other than (A) a Person who is not a Non-U.S. Person or (B) a
Non-U.S. Person that holds a Residual Certificate in connection with the conduct
of a trade or business within the United States and has furnished the transferor
and the Certificate Registrar with an effective Internal Revenue Service Form
W-8ECI or successor form at the time and in the manner required by the
Code.
Non-Recoverable
Advance:
Any
Advance which a Servicer (or subservicer, to the extent such subservicer makes
Advances on behalf of a Servicer), the Master Servicer or the Trustee, as
applicable, has determined in its good faith business judgment will not or,
in
the case of a proposed Advance, would not, be ultimately recoverable by such
Servicer (or subservicer), the Master Servicer or the Trustee from late
payments, Insurance Proceeds, Liquidation Proceeds and other collections or
recoveries in respect of the related Mortgage Loan or REO Property. The
determination by a Servicer (or subservicer) or the Master Servicer that it
has
made a Non-Recoverable Advance shall be evidenced by an Officer’s Certificate
delivered to the Trustee and the Depositor (and in the case of a Servicer (or
subservicer), the Master Servicer) setting forth such determination and the
procedures and considerations of such Servicer (or subservicer) or the Master
Servicer forming the basis of such determination, which shall include a copy
of
any information or reports obtained by a Servicer (or subservicer) or the Master
Servicer which may support such determination.
Non-Servicer
Obligated Mortgage Loans:
Each
Mortgage Loan identified on Exhibit J hereto.
Non-U.S.
Person:
Any
person other than a “United States person” within the meaning of Section
7701(a)(30) of the Code.
Officer’s
Certificate:
With
respect to any Person, a certificate signed by an Authorized Officer of such
Person or, in the case of the Master Servicer or a Servicer, by a Servicing
Officer.
45
Opinion
of Counsel:
A
written opinion of counsel (who may be counsel to the Seller, the Depositor,
the
Master Servicer or a Servicer), which opinion is reasonably acceptable to the
Trustee. With respect to any opinion dealing with federal income tax matters
and
as otherwise set forth in this Agreement, such counsel must (i) in fact be
independent of the Seller, the Depositor, the Master Servicer, the Trustee
and
each Servicer, (ii) not have any direct financial interest in the Seller, the
Depositor, the Master Servicer, the Trustee or a Servicer or in any Affiliate
of
any of them and (iii) not be connected with the Seller, the Depositor, the
Master Servicer, the Trustee or a Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
Optimal
Interest Remittance Amount:
With
respect to each Distribution Date, an amount equal to the product of
(A)
(x)
the weighted average of the Net Mortgage Rates of the Pool 1 Mortgage Loans
as
of the first day of the related Due Period divided
by
(y) 12
and (B) the Pool Balance for Pool 1 as of the first day of the related Due
Period (not including for this purpose Mortgage Loans in Pool 1 for which
prepayments in full have been received and distributed in the month prior to
that Distribution Date), minus
any Net
Swap Payment and Swap Termination Payment (not due to a Swap Counterparty
Trigger Event) owed to the Swap Counterparty, to the extent not paid from
collections on the Pool 2 Mortgage Loans.
Originator:
The
Person that originated the Mortgage Loan pursuant to a written agreement with
the related Mortgagor.
Outstanding
Advances:
As of
any date with respect to a Mortgage Loan, the total amount of Advances made
on
such Mortgage Loan for which the Master Servicer or any Servicer (or
subservicer, to the extent such subservicer makes Advances on behalf of the
Servicer) has not been reimbursed, to the extent that the Master Servicer is
entitled to reimbursement hereunder or such Servicer is entitled to
reimbursement therefor pursuant to the applicable Servicing
Agreement.
Overcollateralization
Amount:
With
respect to any Distribution Date, the amount, if any, by which (a) the Aggregate
Pool Balance for such Distribution Date exceeds (b) the aggregate Class
Principal Balance of the Group 1 Certificates and the LIBOR Certificates on
such
date after giving effect to distributions on such Distribution Date. On the
Closing Date, the initial Overcollateralization Amount shall be approximately
equal to the product of (x) the Initial Overcollateralization Percentage and
(y)
the Aggregate Cut-off Date Pool Balance.
Overcollateralization
Floor:
With
respect to any Distribution date prior to August 2027, the product of (i) 0.50%
and (ii) the Cut-off Date Aggregate Pool Balance. With respect to any
Distribution Date on or after August 2027, the greater of (a) the product of
(i)
0.50% and (ii) the Cut-off Date Aggregate Pool Balance and (b) the sum of (i)
the aggregate Principal Balance of the Mortgage Loans with a remaining term
to
maturity as of the Cut-off Date greater than 30 years and (ii) the product
of
(x) 0.10% and (y) the Cut-off Date Aggregate Pool Balance.
Overcollateralization
Release Amount:
With
respect to any Distribution Date, the lesser
of (x)
the Principal Remittance Amounts for both Mortgage Pools for such Distribution
Date and (y) the amount, if any, by which (i) the Overcollateralization Amount
for such Distribution Date, calculated for this purpose on the basis of the
assumption that 100% of the Principal Remittance Amounts for both Mortgage
Pools
for such Distribution Date is applied on such date in reduction of the Class
Principal Balances of the Group 1 Certificates and the LIBOR Certificates,
exceeds (ii) the Targeted Overcollateralization Amount for such
Distribution Date.
46
Ownership
Interest:
With
respect 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.
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Monthly Payment
received by the applicable Servicer during any Due Period in addition to the
Monthly Payment due on such Due Date and intended by the Mortgagor to be applied
at a future Due Date.
PCAOB:
The
Public Company Accounting Oversight Board.
Percentage
Interest:
The
percentage interest (which may be expressed as a fraction) evidenced by any
Certificate, which is equal (i) with respect to any Certificate other than
a
Class X, Class P, Class RL or Class R Certificate to a fraction, the numerator
of which is the initial principal (or notional) balance of such Certificate,
and
the denominator of which is the initial Class Principal Balance (or Class
Notional Balance) of all Certificates of the same Class, and (ii) with respect
to any Class X, Class P, Class RL or Class R Certificate, the percentage
interest specified thereon.
Permitted
Transferee:
As
defined in Section 5.02(d)(ii) hereof.
Person:
An
individual, partnership, corporation (including a statutory trust), joint stock
company, limited liability company, trust, association, joint venture,
Governmental Authority or any other entity of whatever nature.
Plan:
An
employee benefit plan or other retirement arrangement which is subject to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan’s or arrangement’s assets by reason of their
investment in the entity.
Policy:
With
respect to any FHA Mortgage Loan or VA Mortgage Loan, the applicable FHA
Insurance or VA Guaranty.
Pool
Balance:
With
respect to each Mortgage Pool and any Distribution Date, the aggregate of the
Principal Balances of the Mortgage Loans in such Mortgage Pool for such
Distribution Date.
Pool
Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the fraction, expressed
as a percentage, the numerator of which is the Pool Balance for such Mortgage
Pool for such Distribution Date and the denominator of which is the Aggregate
Pool Balance for such Distribution Date.
Pool
PMI Insurance Policy:
Not
applicable.
Pool
PMI Insurance Premium:
Not
applicable.
47
Pool
PMI-Insured Mortgage Loan:
Not
applicable.
Pool
PMI Insurer:
Not
applicable.
Pool
Subordinate Amount:
With
respect to any Mortgage Pool and any Distribution Date, the excess of the Pool
Balance for such Mortgage Pool as of the first day of the immediately preceding
Due Period over the sum of the aggregate Class Principal Balance of the Group
1
Certificates (in the case of Pool 1) and the Class Principal Balance of the
Group 2 Certificates (in the case of Pool 2) immediately prior to the related
Distribution Date.
Pool
1:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 1.
Pool
1
Available Funds Cap:
With
respect to the Group 1 Certificates and any Distribution Date, (A)(1)(a) the
aggregate of interest accrued (whether or not collected or advanced) for the
related Due Period on the Pool 1 Mortgage Loans at the applicable Net Mortgage
Rates minus
(b) the
sum of (x) any Net Swap Payment or Swap Termination Payment owed to the Swap
Counterparty (provided
that any
such Swap Termination Payment is not due to a Swap Counterparty Trigger Event)
to the extent not paid from collections on the Pool 2 Mortgage Loans and (y)
the
aggregate of interest accrued for the related Accrual Period on the A-IO(1)
Component for such Distribution Date, multiplied
by
(2) the
Senior Available Funds Cap Percentage,
divided by
(3) the
Class Principal Balance of the Group 1 Certificates immediately prior to such
Distribution Date multiplied
by
(B)
12.
Pool
1
Excess Interest:
With
respect to any Distribution Date, the amount of any Interest Remittance Amount
for Pool 1 remaining after application pursuant to clauses (i) through (xii)
of
Section 6.05(b) on such Distribution Date.
Pool
2:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 2.
Pool
2
Available Funds Cap:
With
respect to the Group 2 Certificates and any Distribution Date, (A)(1)(a) the
aggregate of interest accrued (whether or not collected or advanced) for the
related Due Period on the Pool 2 Mortgage Loans at the applicable Net Mortgage
Rates minus
(b) the
sum of (x) any Net Swap Payment or Swap Termination Payment owed to the Swap
Counterparty (provided
that any
such Swap Termination Payment is not due to a Swap Counterparty Trigger Event)
and (y) the aggregate of interest accrued for the related Accrual Period on
the
A-IO(2) Component for such Distribution Date, multiplied
by
(2) the
Senior Available Funds Cap Percentage,
divided by
(3) the
Class Principal Balance of the Group 2 Certificates immediately prior to such
Distribution Date, multiplied
by
(B) the
fraction, expressed as a percentage, the numerator of which is 360, and the
denominator of which is the actual number of days in the related Accrual
Period.
Pool
2
Excess Interest:
With
respect to any Distribution Date, the amount of any Interest Remittance Amount
for Pool 2 remaining after application pursuant to clauses (i) through (xii)
of
Section 6.05(c) on such Distribution Date.
48
Pool
2
Net WAC:
With
respect to any Distribution Date, the weighted average (by Principal Balance)
of
the Net Mortgage Rates of the Pool 2 Mortgage Loans.
Pool
2
REMIC WAC:
As
defined in the Preliminary Statement to this Agreement.
Prepayment
in Full:
With
respect to any Mortgage Loan, a Mortgagor payment consisting of a Principal
Prepayment in the amount of the outstanding principal balance of such Mortgage
Loan, together with interest thereon at the related Mortgage Rate to the date
of
such prepayment, and resulting in the full satisfaction of such Mortgage
Loan.
Prepayment
Interest Shortfall:
With
respect to any Prepayment in Full, the excess, if any, of (i) one full month’s
interest on the related Mortgage Loan at the applicable Mortgage Rate (as
reduced by the Servicing Fee Rate) on the outstanding principal balance of
such
Mortgage Loan immediately prior to such prepayment over (ii) the amount of
interest actually received with respect to such Mortgage Loan in connection
with
such Principal Prepayment.
Prepayment
Period:
With
respect to any Distribution Date, the calendar month immediately preceding
the
month of such Distribution Date (or such other period as specified in the
applicable Servicing Agreement),
provided
that for
purposes of determining the Prepayment Period, each Distribution Date shall
be
deemed to occur on the 28th
calendar
day of the related month, regardless whether such day is a Business
Day.
Preservation
Expenses:
Reasonable and customary expenditures made by the Master Servicer or a Servicer
(or subservicer, to the extent such subservicer makes such expenditures on
behalf of a Servicer) in connection with a foreclosed Mortgage Loan prior to
the
liquidation thereof, including, without limitation, expenditures for real estate
property taxes and assessments, payments to senior lienholders or holders of
any
ground lease, hazard insurance premiums, property restoration or
preservation.
Primary
Mortgage Insurance Policy:
Any
Pool PMI Insurance Policy, and any other policy of primary mortgage guaranty
insurance issued by an insurance company, FHA Insurance or a VA Guaranty with
respect to any Mortgage Loan.
Principal
Balance:
With
respect to any Mortgage Loan as of any Distribution Date, the principal balance
of such Mortgage Loan remaining to be paid by the Mortgagor as of the Cut-off
Date after deduction of all Monthly Payments due on or before the Cut-off Date,
plus
any
Mortgage Loan Negative Amortization, minus
the sum
of (i) all principal collected or advanced in respect of Monthly Payments due
after the Cut-off Date through the last day of the related Due Period and (ii)
all Principal Prepayments received, and the principal portion of all Liquidation
Proceeds, Insurance Proceeds and other unscheduled recoveries collected (other
than Subsequent Recoveries), through the last day of the related Prepayment
Period.
Principal
Distribution Amount:
With
respect to each Mortgage Pool and any Distribution Date, the Principal
Remittance Amount for such Mortgage Pool and such Distribution Date minus
the
Overcollateralization Release Amount, if any, allocable to such Mortgage Pool,
determined on the basis of the Principal Remittance Amount for such Mortgage
Pool.
49
Principal
Prepayment:
With
respect to any Mortgage Loan, any payment of principal made by the related
Mortgagor in advance of the Due Date therefor other than the principal portion
of (i) Monthly Payments other than Balloon Payments and (ii)
Payaheads.
Principal
Remittance Amount:
With
respect to each Mortgage Pool and any Distribution Date, to the extent conveyed
to the Trustee hereunder and received by the Master Servicer, the sum of (i)
all
principal collected (other than Payaheads) or advanced or otherwise remitted
in
respect of Monthly Payments on the Mortgage Loans in such Mortgage Pool during
the related Due Period, (ii) all Prepayments in Full or partial Principal
Prepayments received (or Prepayments in Full on Non-Servicer Obligated Mortgage
Loans remitted by the related Servicer to the Master Servicer on a daily basis,
which are deemed by the Master Servicer to have been received) during the
applicable Prepayment Period on the Mortgage Loans in such Mortgage Pool, (iii)
the portion of the Purchase Price of each Mortgage Loan that was purchased
from
such Mortgage Pool during the related Prepayment Period allocable to principal,
(iv) the portion of any Substitution Amount allocable to principal paid
during the related Prepayment Period with respect to the Mortgage Loans in
such
Mortgage Pool, (v) all Net Liquidation Proceeds, including Subsequent
Recoveries, Insurance Proceeds and other recoveries collected and remittances
made during the related Prepayment Period (including proceeds of Additional
Collateral) with respect to the Mortgage Loans in such Mortgage Pool, to the
extent allocable to principal, and (vi) any Holdback Amount applied in reduction
of the principal balance of a Mortgage Loan in such Mortgage Pool during the
applicable Prepayment Period, as reduced, in each case, to the extent provided
in this Agreement or the applicable Servicing Agreement, by Outstanding Advances
with respect to the Mortgage Loans in such Mortgage Pool, to the extent
allocable to principal, and the applicable Pool Percentage of other amounts
due
to the Master Servicer, the Servicers or the Trustee, hereunder or under the
Servicing Agreements, to the extent not reimbursed from amounts allocable to
interest on the related Mortgage Loans for such Distribution Date.
Proprietary
Lease:
With
respect to any Cooperative Property, a lease or occupancy agreement between
a
Cooperative Corporation and a holder of related Cooperative Shares.
Prospectus:
The
prospectus supplement dated July 24, 2007, together with the accompanying
prospectus dated July 6, 2007, relating to the Group 1 Certificates, the Class
A-IO Certificates and the LIBOR Certificates, together with any supplement
thereto.
Purchase
Agreement:
The
Mortgage Loan Purchase Agreement dated as of July 1, 2007, by and between the
Seller and the Depositor, providing for the transfer of the Mortgage Loans
(other than the Re-sold Mortgage Loans) to the Depositor.
Purchase
Price:
With
respect to any Mortgage Loan, an amount equal to the sum of (i) the unpaid
principal balance of such Mortgage Loan immediately prior to the repurchase
date, (ii) any accrued and unpaid interest thereon from the date as to which
interest was last paid to (but not including) the date of purchase, calculated
at the Mortgage Rate thereon, (iii) any unreimbursed Servicing Advances with
respect to such Mortgage Loan, and (iv) the
amount of any costs and damages incurred by the Trust Fund as a result of any
violation of any predatory or abusive lending law arising from or in connection
with the origination of such Mortgage Loan.
50
Qualified
Substitute Mortgage Loan:
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 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 the 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 (taking into account the rate of
any
retained interest, if applicable), (iii) in the case of any Adjustable Rate
Mortgage Loan, have a maximum Mortgage Rate not less than the maximum Mortgage
Rate on the Deleted Mortgage Loan, (iv) in the case of any Adjustable Rate
Mortgage Loan, have a minimum Mortgage Rate not less than the minimum Mortgage
Rate of the Deleted Mortgage Loan, (v) in the case of any Adjustable Rate
Mortgage Loan, have a gross margin not less than (and not more than one
percentage point in excess of) the gross margin of the Deleted Mortgage Loan,
(vi) in the case of any 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 (provided,
however,
that in
no case shall such substitute mortgage loan have a maturity date later than
the
Final Scheduled Distribution Date), (viii) have the same Due Date as the Due
Date on the Deleted Mortgage Loan, (ix) have a Loan-to-Value Ratio (or a
Combined Loan-to-Value Ratio, as applicable) and an Effective Loan-to-Value
Ratio as of the date of substitution equal to or lower than the Loan-to-Value
Ratio and Effective Loan-to-Value Ratio, respectively (or Combined Loan-to-Value
Ratio, as applicable) of the Deleted Mortgage Loan as of such date, (x) be
an
FHA Mortgage Loan if the Deleted Mortgage Loan was an FHA Mortgage Loan and
be a
VA Mortgage Loan if the Deleted Mortgage Loan was a VA Mortgage Loan, (xi)
not
be more than 29 days delinquent in payment, (xii) be a Pool PMI-Insured Mortgage
Loan if the Deleted Mortgage Loan was a Pool PMI-Insured Mortgage Loan and
(xiii) conform to the representations and warranties set forth in Section 6
of
the Purchase Agreement or Section 6 of the related Revolving Purchase 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
principal balances, the Mortgage Rates described in clause (ii) hereof shall
be
determined on the basis of weighted average Mortgage Rates, the terms described
in clause (vii) hereof shall be determined on the basis of weighted average
remaining term to maturity (provided
that the
stated maturity date of any such mortgage loan shall not be later than the
Final
Scheduled Distribution Date), the Loan-to-Value Ratios (or Combined
Loan-to-Value Ratios, as applicable) 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 (x) hereof must be satisfied as to each Qualified Substitute Mortgage
Loan or in the aggregate, as the case may be.
Rating
Agency:
Each of
Fitch, Xxxxx’x and S&P.
Ratings
Requirement:
With
respect to any action to which the Ratings Requirement applies, that each Rating
Agency shall have been given 10 days (or such shorter period as is acceptable
to
each Rating Agency) prior notice thereof and that each Rating Agency shall
have
notified the Depositor and the Trustee in writing that such action will not
result in a reduction or withdrawal of the then current rating of the rated
Certificates.
51
Readjustment
Act:
The
Serviceman’s Readjustment Act of 1944, as amended.
Real
Estate:
All
Loan Collateral as to which perfection is governed by state real estate statutes
or other state real estate law.
Realized
Loss:
An
amount determined by the applicable Servicer and evidenced by an Officer’s
Certificate of such Servicer delivered to the Master Servicer pursuant to the
applicable Servicing Agreement, in connection with any Mortgage Loan equal
to
(a) with respect to any Liquidated Mortgage Loan (other than a Liquidated
Mortgage Loan with respect to which a Deficient Valuation has occurred), the
excess of the Principal Balance of such Liquidated Mortgage Loan plus
interest
thereon at a rate equal to the sum of the applicable Mortgage Rate less the
Servicing Fee Rate from the Due Date as to which interest was last paid up
to
the Due Date next succeeding such liquidation over proceeds, if any, received
in
connection with such liquidation, after application of all withdrawals permitted
to be made by the related Servicer or the Master Servicer from the related
Custodial Account or the Collection Account with respect to such Mortgage Loan,
or (b) with respect to any Mortgage Loan which has become the subject of a
Deficient Valuation, the excess of the Principal Balance of the Mortgage Loan
over the principal amount as reduced in connection with the proceedings
resulting in the Deficient Valuation.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Record
Date:
With
respect to any Distribution Date and each Class of Certificates other than
the
Group 1 Certificates, the close of business on the Business Day immediately
preceding such Distribution Date; and with respect to the Group 1 Certificates,
the close of business on the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs, provided
that for
purposes of determining the Record Date for the Group 1 Certificates, each
Distribution Date shall be deemed to occur on the 28th
calendar
day of the related month, regardless whether such day is a Business
Day.
Records:
All
documents, books, records and other information (including, without limitation,
computer programs, tapes, disks, punch cards, data processing software and
related property and rights) prepared and maintained by the Servicers and the
Master Servicer or by or on behalf of the Seller with respect to the Mortgage
Loans and the related Mortgagors.
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.
Regulations:
FHA
Regulations or VA Regulations, as the case may be.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party as set forth on Exhibit P-1 hereto.
Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Trustee or a Servicer, the term “Relevant Servicing Criteria” may
refer to a portion of the Relevant Servicing Criteria applicable to such
parties.
52
Relevant
UCC:
The
Uniform Commercial Code as in effect in the applicable
jurisdiction.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of section 860D of the
Code.
REMIC
1:
As
described in the Preliminary Statement to this Agreement.
REMIC
2:
As
described in the Preliminary Statement to this Agreement.
REMIC
3:
As
described in the Preliminary Statement to this Agreement.
REMIC
3 Net WAC Rate:
As
described in the Preliminary Statement to this Agreement at footnote (3) under
the table describing REMIC 4.
REMIC
4:
As
described in the Preliminary Statement to this Agreement.
REMIC
Change of Law:
Any
proposed, temporary or final regulation, revenue ruling, revenue procedure
or
other official announcement or interpretation relating to REMICs and the REMIC
Provisions issued after the Closing Date.
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and regulations promulgated
thereunder, as the foregoing may be in effect from time to time as well as
provisions of applicable state laws.
Removable
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgagor fails to make the first Monthly
Payment of principal and interest due after the Closing Date.
Rents
from Real Property:
With
respect to any REO Property, gross income of the character described in Section
856(d) of the Code as being included in the term “rents from real
property.”
REO
Imputed Payment:
With
respect to any REO Property, for any calendar month during which such REO
Property was at any time part of the Trust Fund, an amount equal to the
scheduled Monthly Payment that would have been due on the related Mortgage
Loan
were such Mortgage Loan still outstanding, after giving effect to any adjustment
of the Mortgage Rate, if applicable.
REO
Property:
Loan
Collateral acquired by the Trustee, or by the Master Servicer or any Servicer
(or agent or nominee thereof) on behalf of the Trustee, through foreclosure
or
deed-in-lieu of foreclosure or otherwise in connection with a defaulted Mortgage
Loan.
Reportable
Event:
As
defined in Section 4.31(a) hereof.
Request
For Release:
The
form set forth as Exhibit E hereto.
53
Required
Certificateholders:
Holders
who hold Certificates evidencing not less than 51% of the aggregate Voting
Rights of the Certificates; provided,
however,
that
for purposes of Section 10.05(b), such percentage shall be increased to
66-2/3%.
Reserve
Fund:
The
reserve fund established and maintained by the Trustee as an Eligible Account
pursuant to Section 6.02(a)(iii) of this Agreement, which reserve fund is an
asset of the Supplemental Interest Trust and not of the Trust Fund or any
REMIC.
Reserve
Fund Requirement:
With
respect to any Distribution Date, the greater of (i) the Targeted
Overcollateralization Amount for such Distribution Date minus
the
Overcollateralization Amount for such Distribution Date and (ii)
zero.
Residual
Certificate:
Any
Class R or Class RL Certificate.
Re-sold
Mortgage Loan:
Any
2004-B Re-sold Mortgage Loan, 2005-A Re-sold Mortgage Loan or 2005-E Re-sold
Mortgage Loan.
Responsible
Officer:
Any
Vice President, any Assistant Vice President, any Assistant Secretary, any
Assistant Treasurer, any Corporate Trust officer or any other officer of the
Trustee customarily performing functions similar to those performed by any
of
the above-designated officers and also, with respect to a particular matter,
any
other officer to whom such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject, in each case having
direct responsibility for the administration of this Agreement.
Restricted
Certificate:
Each of
the Class X, Class P, Class R and Class RL Certificates.
Retained
Certificates:
The
Class
M-4, Class B-1 and Class B-2
Certificates.
Retained
Interest:
With
respect to each Mortgage Loan identified on the Mortgage Loan Schedule as a
“Retained Interest Mortgage Loan,” interest in respect of each such Mortgage
Loan retained by any Retained Interest Holder at the related Retained Interest
Rate and remitted to such Retained Interest Holder pursuant to the related
Servicing Agreement or pursuant to Section 4.08, as applicable.
Retained
Interest Holder:
With
respect to each Mortgage Loan identified on the Mortgage Loan Schedule as a
“Retained Interest Mortgage Loan,” the retained interest holder so specified
thereon.
Retained
Interest Rate:
With
respect to each Mortgage Loan identified on the Mortgage Loan Schedule as a
“Retained Interest Mortgage Loan,” the per annum rate so specified
thereon.
Revolving
Purchase Agreement:
Each of
the 2004-B Revolving Purchase Agreement, the 2005-A Revolving Purchase Agreement
and the 2005-E Revolving Purchase Agreement.
Revolving
Trust:
Each of
the 2004-B Revolving Trust, the 2005-A Revolving Trust and the 2005-E Revolving
Trust.
54
Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, an amount equal to the average of the 60-Day
Delinquency Rates for each of the three (or one or two, in the case of the
first
and second Distribution Dates, respectively) immediately preceding months,
provided
that for
purposes of determining the Rolling Three Month Delinquency Rate, each
Distribution Date shall be deemed to occur on the 28th
calendar
day of the related month, regardless whether such day is a Business
Day.
S&P:
Standard and Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
Xxxxxxxx-Xxxxx
Certification:
As
defined in Section 4.31(c) hereof.
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Intermediary:
The
Person acting as Securities Intermediary under this Agreement (which initially
is U.S. Bank National Association), its successor in interest, and any successor
Securities Intermediary appointed pursuant to Section 6.02(c).
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Loan that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
Security
Entitlement:
The
meaning specified in Section 8-102(a)(17) of the New York UCC.
Seller:
Bayview
Financial, L.P., as seller under the Purchase Agreement.
Seller
Retained Interest Rate:
Not
applicable.
Senior
Certificate:
Any
Class A-IO Certificate, Group 1 Certificate or Group 2 Certificate.
Senior
Available Funds Cap Percentage:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is the aggregate Class Principal Balance of the Group 1
Certificates and the Group 2 Certificates and the denominator of which is the
aggregate Class Principal Balance of the Group 1 Certificates and the LIBOR
Certificates, in each case immediately prior to that Distribution
Date.
Senior
Priority:
With
respect to the Group 1 Certificates, the priority of distributions provided
in
Section 6.05(d)(i)(A)(2), and with respect to the Group 2 Certificates, the
priority of distributions provided in Section 6.05(d)(i)(B)(2).
Service(s)(ing):
With
respect to Regulation AB, the act of servicing and administering the Mortgage
Loans or any other assets of the Trust Fund by an entity that meets the
definition of “servicer” set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in Item 1108 of Regulation AB. Any
uncapitalized occurrence of this term shall have the meaning commonly understood
by participants in the residential mortgage-backed securitization
market.
55
Servicer:
The
Servicers shall be Aurora Loan Services, Inc., BLS, CitiMortgage, Inc., M&T
Bank, Washington Mutual Mortgage Securities Corp. and Xxxxx Fargo Bank, N.A.,
and their respective successors and assigns.
Servicer
Remittance Date:
As
defined in the applicable Servicing Agreement.
Servicing
Advance:
The
reasonable “out-of-pocket” costs and expenses incurred by the Servicers (or any
subservicer, to the extent such subservicer incurs such costs and expenses
on
behalf of a Servicer) or the Master Servicer in connection with a default,
delinquency or other unanticipated event in the performance of their respective
servicing obligations or master servicing obligations, including, but not
limited to, the cost of (i) the preservation, restoration and protection of
a
Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures, in respect of a particular Mortgage Loan, (iii) the management
(including reasonable fees in connection therewith) and liquidation of any
REO
Property and (iv) all Preservation Expenses. Servicing Fees and Master Servicing
Fees, to the extent not paid when due, shall be deemed, and shall be
reimbursable as, a Servicing Advance.
Servicing
Agreement:
Any
written contract for the servicing of the Mortgage Loans to which the Trustee
is
either a party or a third party beneficiary. A list of the Servicing Agreements
(including servicing acknowledgement agreements, if any) with respect to the
Servicers as of the Closing Date is attached hereto as Exhibit H.
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 Distribution Date and each Mortgage Loan, the product of the
applicable per annum Servicing Fee Rate and the Principal Balance or the unpaid
principal balance, as applicable, of such Mortgage Loan immediately preceding
the applicable Servicer Remittance Date.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the per annum rate specified in the related
Servicing Agreement and the Mortgage Loan Schedule.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than a Servicer, the
Master Servicer or the Trustee, that is participating in the servicing function
within the meaning of Regulation AB, unless such Person’s activities relate only
to 5% or fewer of the Mortgage Loans.
Servicing
Officer:
Any
officer or employee of the Servicer or Master Servicer involved in, or
responsible for, the administration and servicing or master servicing,
respectively, of Mortgage Loans whose name appears on a list of servicing
officers attached to Officer’s Certificates furnished to the Master Servicer and
the Trustee, respectively, as such lists may be amended from time to
time.
56
Servicing
Rights Owner:
The
owner of the servicing rights under any Servicing Agreement.
Servicing
Standard:
Shall
have the meaning assigned thereto in each Servicing Agreement.
Simple
Interest Mortgage Loans:
The
Mortgage Loans listed in Schedule I-A attached hereto.
Sponsor:
Bayview
Financial, L.P.
Stepdown
Date:
The
latest to occur of (i) the Distribution Date in August 2010, (ii) the first
Distribution Date on which the Aggregate Pool Balance is equal to or less than
50.00% of the Cut-off Date Aggregate Pool Balance and (iii) the first
Distribution Date on which the Enhancement Percentage for each Class of Group
1
Certificates and each Class of LIBOR Certificates is greater than or equal
to
the applicable percentage set forth below:
|
Class
|
Percentage
|
|
1-A1,
1-A2, 1-A3,
1-A4,
1-A5, 2-A1, 2-A2, 2-A3, 2-A4
|
37.60%
|
|
M-1
|
26.40%
|
|
M-2
|
23.20%
|
|
M-3
|
17.50%
|
|
M-4
|
14.90%
|
|
B-1
|
12.40%
|
|
B-2
|
10.10%
|
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 the Mortgage Loans
under the direction or authority of any Servicer (or a Subservicer of any
Servicer), the Master Servicer or the Trustee.
Subordinate
Available Funds Cap:
With
respect to each Class of Subordinate Certificates that is a Class of LIBOR
Certificates, (A)(1)(a) the aggregate of interest accrued (whether or not
collected or advanced) for the related Due Period on all Mortgage Loans at
the
applicable Net Mortgage Rates minus
(b) the
sum of (x) any Net Swap Payment or Swap Termination Payment owed to the Swap
Counterparty (provided
that any
such Swap Termination Payment is not due to a Swap Counterparty Trigger Event)
and (y) the aggregate of interest accrued for the related Accrual Period on
the
Senior Certificates (excluding any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls), divided
by (2)
the
aggregate Class Principal Balance of the Subordinate Certificates immediately
prior to such Distribution Date multiplied
by
(B) the
fraction, expressed as a percentage, the numerator of which is 360 and the
denominator of which is the actual number of days in the related Accrual
Period.
Subordinate
Certificate:
Any
Class M-1, Class M-2, Class M-3, Class M-4, Class B-1 or Class B-2
Certificate.
57
Subordination
Trigger Event:
A
Subordination Trigger Event will have occurred with respect to any Distribution
Date if the Enhancement Percentage for any Class of Group 1 Certificates or
any
Class of LIBOR Certificates for the immediately preceding Distribution Date
is
less than the applicable percentage set forth below:
|
Class
|
Percentage
|
|
1-A1,
1-A2,
1-A3,
1-A4,
1-A5,
2-A1,
2-A2,
2-A3,
2-A4
|
37.60%
|
|
M-1
|
26.40%
|
|
M-2
|
23.20%
|
|
M-3
|
17.50%
|
|
M-4
|
14.90%
|
|
B-1
|
12.40%
|
|
B-2
|
10.10%
|
Subsequent
Recoveries:
With
respect to any Mortgage Loan, any collection or other recovery of amounts owed
thereunder after such Mortgage Loan becomes a Liquidated Mortgage
Loan.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer and (iii) is responsible
for
the performance (whether directly or through subservicers or Subcontractors)
of
Servicing functions required to be performed under this Agreement, any related
Servicing Agreement or any subservicing agreement that are identified in Item
1122(d) of Regulation AB.
Substitution
Amount:
As
defined in Section 2.03(d).
Successor
Master Servicer:
Any
successor to the Master Servicer, which successor shall be an FHA Approved
Mortgagee.
Supplemental
Interest Trust:
The
trust created pursuant to Section 6.14 of this Agreement and designated as
the
“Supplemental Interest Trust,” the assets of which consist of the Reserve Fund
and its assets (including, without limitation, the Cap Agreement), the Swap
Agreement, the Swap Account, the right to receive the Class X Distributable
Amount as provided in Section 6.05(e)(x) and the Class T4-IO-Swap Interest
and
all income, revenues, issues, products, revisions, substitutions, replacements,
profits, rents and all cash and non-cash proceeds of the foregoing.
Swap
Account:
The
Eligible Account created pursuant to Section 6.14(a) of this
Agreement.
Swap
Agreement:
The
interest rate swap agreement entered into by the Supplemental Interest Trust,
which agreement provides for, among other things, a Net Swap Payment to be
paid
pursuant to the conditions provided therein, together with any schedules,
confirmations or other agreements relating thereto, attached hereto as Exhibit
G-2.
58
Swap
Amount:
With
respect to each Distribution Date and the related Swap Payment Date, the sum
of
any Net Swap Payment and any Swap Termination Payment deposited into the Swap
Account.
Swap
Collateral Account:
The
Eligible Account maintained by the Trustee in accordance with the provisions
of
Section 6.14(c).
Swap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Swap Agreement, and
any successor in interest or assigns. Initially, the Swap Counterparty shall
be
Xxxxxxx Xxxxx Capital Services, Inc.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event with respect to which the Swap Counterparty is the sole Affected Party
or
an Additional Termination Event with respect to which the Swap Counterparty
is
the sole Affected Party has occurred.
Swap
Credit Support Annex:
The
credit support annex to the Swap Agreement dated as of July 27, 2007, between
the Trustee, on behalf of the Supplemental Interest Trust, and the Swap
Counterparty.
Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
Swap
LIBOR:
With
respect to any Distribution Date and the related Swap Payment Date (and the
Accrual Period relating to such Distribution Date), the product of (i) the
Floating Rate Option (as defined in the Swap Agreement) for the related Swap
Payment Date and (ii) two.
Swap
Payment Date:
For so
long as the Swap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
Swap
Replacement Receipts:
As
defined in Section 6.16.
Swap
Replacement Receipts Account:
As
defined in Section 6.16.
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment required to be made by the Supplemental Interest Trust to the Swap
Counterparty, or by the Swap Counterparty to the Supplemental Interest Trust,
as
applicable, pursuant to the terms of the Swap Agreement, and any unpaid amounts
due on previous Swap Payment Dates and accrued interest thereon as provided
in
the Swap Agreement, as calculated by the Swap Counterparty and furnished to
the
Trustee and the Master Servicer.
Swap
Termination Receipts:
As
defined in Section 6.16.
Swap
Termination Receipts Account:
As
defined in Section 6.16.
59
Targeted
Overcollateralization Amount:
With
respect to any Distribution Date (i) prior to the Stepdown Date, the product
of
5.05% and the Cut-off Date Aggregate Pool Balance, (ii) on and after the
Stepdown Date if a Trigger Event is not in effect, the greater of (a) the
product of 10.10% and the Aggregate Pool Balance for such Distribution Date
and
(b) the Overcollateralization Floor for such Distribution Date and (iii) on
and
after the Stepdown Date if a Trigger Event is in effect, the amount calculated
under this definition for the immediately preceding Distribution
Date.
Tax
or
Taxes:
All
taxes, charges, fees, levies or other assessments, including, without
limitation, income, gross receipts, profits, withholding, excise, property,
sales, use, occupation and franchise taxes (including, in each such case, any
interest, penalties or additions attributable to or imposed on or with respect
to any such taxes, charges, fees or other assessments) imposed by the United
States, any state or political subdivision thereof, any foreign government
or
any other jurisdiction or taxing authority.
Tax
Matters Person:
The
Person designated as “tax matters person” in the manner provided under Treasury
regulation § 1.860F-4(d) and temporary Treasury regulation
§ 301.6231(a)(7)1T. Initially, the Tax Matters Person shall be the
Trustee.
Tax
Matters Person Certificate:
The
Class R Certificate with a Denomination of 0.00001%.
Termination
Date:
As
defined in Section 10.01.
Termination
Event:
As
defined in the Swap Agreement.
Termination
Price:
As
defined in Section 10.02(a).
Total
Distribution Amount:
With
respect to any Distribution Date, the sum (without duplication) of the Interest
Remittance Amount for each Mortgage Pool and the Principal Remittance Amount
for
each Mortgage Pool for such Distribution Date.
Trigger
Event:
A
Trigger Event will be in effect with respect to any Distribution Date if a
Delinquency Event, a Cumulative Loss Trigger Event or a Subordination Trigger
Event has occurred with respect to such Distribution Date.
Trust
Account:
As
defined in Section 6.02(b).
Trust
Account Property:
The
Trust Accounts, all amounts and investments held from time to time in the Trust
Accounts (whether in the form of deposit accounts, physical property, book-entry
securities, uncertificated securities, securities entitlements, investment
property or otherwise) and all proceeds of the foregoing.
Trust
Fund:
The
corpus of the trust created hereunder, consisting of all accounts, accounts
receivable, contract rights, claims, choses in action, general intangibles,
chattel paper, instruments, documents, money, deposit accounts, certificates
of
deposit, goods, notes, drafts, letters of credit, advices of credit, investment
property, uncertificated securities and rights to payment of any and every
kind
consisting of, arising from or relating to any of the following: (a)(i) the
Mortgage Loans (other than the related servicing rights), listed in the Mortgage
Loan Schedules attached hereto as Schedule I (and subdivided into Schedule
I-A,
Schedule I-B, Schedule I-C, Schedule I-D, Schedule I-E, Schedule I-F, Schedule
I-G, Schedule I-H and Schedule I-I) and Schedule II (and subdivided into
Schedule II-A, Schedule II-B and Schedule II-C), including all payments of
interest (other than any Retained Interest), all prepayment premiums or
penalties or yield maintenance payments received or receivable by the Depositor
on or with respect to the Mortgage Loans listed on Schedule I-B hereto, and
all
principal and other amounts received or receivable on or with respect to the
Mortgage Loans on or after the Cut-off Date (other than payments due on or
prior
to such date) and all payments due after such date but received prior to such
date, (ii) the related Mortgage Files and all rights of the Depositor in the
Loan Collateral, (iii) any Insurance Policies and (iv) any Insurance Proceeds,
REO Property, Liquidation Proceeds and other recoveries (in each case, subject
to clause (i) above), (b) the Collection Account, the Certificate Distribution
Account and all amounts deposited therein pursuant to the applicable provisions
of this Agreement, (c) any Eligible Investments held or amounts on deposit
in
any Trust Account, (d) the rights of the Depositor under the Purchase Agreement,
the Assignment Agreements, the BFPT II Assignment Agreement, each Servicing
Agreement and the Diligence Agreement, (e) the rights of the Trustee under
each
Servicing Agreement, (f) all Holdback Amounts on deposit in custodial accounts
established by BLS for the benefit of the Trust Fund and (g) all income,
revenues, issues, products, revisions, substitutions, replacements, profits,
rents and all cash and non-cash proceeds of the foregoing.
60
The
Reserve Fund and its assets (including, without limitation, the Cap Agreement),
the Swap Agreement, the Swap Account, the right to receive the Class X
Distributable Amount as provided in Section 6.05(e)(x) and the Class T4-IO-Swap
Interest are assets of the Supplemental Interest Trust.
Trustee:
U.S.
Bank National Association, a national banking association, and any successor
in
interest, not in its individual capacity, but solely as Trustee
hereunder.
Trustee
Fee:
With
respect to each Distribution Date, the product of the Trustee Fee Rate and
the
Aggregate Pool Balance as of the opening of business on the first day of the
related Due Period (or, in the case of the first Distribution Date, as of the
Cut-off Date).
Trustee
Fee Rate:
0.0050%
per annum.
Underwriter:
Each of
X.X. Xxxxxx Securities Inc., Citigroup Global Markets Inc., and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2007-5, 72 Fed. Reg. 13,130 (March 20, 2007),
as amended (or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of Labor.
Unpaid
Basis Risk Shortfall:
With
respect to any Distribution Date and any Class of Group 1 Certificates or LIBOR
Certificates, the aggregate of all Basis Risk Shortfalls with respect to such
Class remaining unpaid from previous Distribution Dates, plus
interest
accrued thereon at the applicable Interest Rate (calculated without giving
effect to the Pool 1 Available Funds Cap, Pool 2 Available Funds Cap or
Subordinate Available Funds Cap, as applicable).
61
Upper
Tier REMIC:
REMIC
4.
U.S.
Person:
A
person who is a “United States person” within the meaning of Section 7701(a)(30)
of the Code.
VA
Guaranty:
A
guaranty granted by the VA with respect to any Mortgage Loan.
VA:
The
U.S. Department of Veterans Affairs.
VA
Loan Guaranty Certificate:
With
respect to each Mortgage Loan with a VA Guaranty, the loan guaranty certificate
evidencing such guaranty.
VA
Mortgage Loan:
Not
applicable.
VA
Regulations:
Regulations promulgated by the VA pursuant to the Readjustment Act, codified
in
38 Code of Federal Regulations, and other VA issuances relating to mortgage
loans guaranteed by the VA, including, without limitation, related handbooks,
circulars, notices and mortgage letters.
Voting
Rights:
The
portion of the aggregate voting rights of all the Certificates evidenced by
a
Certificate. 90% of all voting rights under this Agreement shall be allocated
among all holders of the Group 1 Certificates (subject, in the case of the
Class
1-A5 Certificates, to Section 5.03 hereof) and the LIBOR Certificates, in
proportion to their then outstanding Class Principal Balances; 4% of all voting
rights shall be allocated to the holders of the Class X Certificates; and 6%
of
all voting rights shall be allocated to the holders of the Class RL
Certificates. The Class A-IO, Class P and Class R Certificates shall not have
voting rights.
Section
1.02. Provisions
of General Application.
(a) For
all
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i) All
accounting terms not specifically defined herein shall be construed in
accordance with GAAP.
(ii) All
terms
used in Article 8 and Article 9 of the New York UCC, and not specifically
defined herein, are used herein as defined in such Article.
(iii) The
terms
defined in this Article include the plural as well as the singular.
(iv) The
words
“herein,” “hereof” and “hereunder” and other words of similar import refer to
this Agreement as a whole. All references to Articles and Sections shall be
deemed to refer to Articles and Sections of this Agreement.
(v) References
to statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute to which reference is made
and
all regulations (including, when consistent with market practice, proposed
regulations) promulgated pursuant to such statutes.
62
(vi) Except
with respect to accrued interest on the LIBOR Certificates or as otherwise
specified herein, all per annum percentage rate calculations hereunder shall
be
based upon a 360-day year consisting of twelve 30-day months.
(b) This
Agreement is a “declaration of trust” for purposes of FHA
Regulations.
ARTICLE
II
TRANSFER
OF ASSETS
Section
2.01. Conveyance
of Mortgage Loans.
On
the
Closing Date, the Depositor, in exchange for the delivery to the Depositor
or
its designee(s) of the Certificates, registered in such names as the Depositor
shall designate, concurrently with the execution and delivery of this Agreement
and on the terms set forth herein does hereby grant, transfer, assign, set
over
and otherwise convey to the Trustee, without recourse (except to the extent
specified herein), all right, title and interest of the Depositor in, to and
under the assets constituting the Trust Fund.
In
connection with such transfer and assignment, the Depositor does hereby also
irrevocably transfer, assign, set over and otherwise convey to the Trustee
all
of the Depositor’s rights, but none of its obligations, under the Purchase
Agreement (other than its rights to indemnification thereunder), the Servicing
Agreements, the BFPT II Assignment Agreement, the Assignment Agreements and
the
Diligence Agreement. The Trustee hereby accepts such transfer and assignment
of
rights under such agreements, and, subject to the provisions hereof, shall
be
entitled to exercise all of the rights of the Depositor under such agreements
as
if, for such purpose, it were the Depositor.
In
connection with such transfer and assignment, the Depositor does hereby deliver
to and deposit with the Trustee for the benefit of Certificateholders the
following documents or instruments with respect to each Mortgage Loan (a
“Mortgage File”) so transferred and assigned:
(i) (A)
the
original Mortgage Note, endorsed in the following form: “Pay to the order of
U.S. Bank National Association, as Trustee (Bayview), without recourse” or in
blank, with all prior and intervening endorsements showing a complete chain
of
endorsement from the originator to the Person so endorsing to the Trustee or
(B)
an original or copy of the installment sale contract for the purchase of the
related Mortgaged Property;
(ii) with
respect to each Mortgage Loan, (A) the original Mortgage or copy of the Mortgage
with evidence of recording thereon (or, in the case of a Mortgage for which
the
related Mortgaged Property is located in the Commonwealth of Puerto Rico, a
true
copy of the Mortgage certified as such by the applicable notary) and (B) the
original or a copy of recorded power of attorney, if the Mortgage was executed
pursuant to a power of attorney, with evidence of recording
thereon;
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(iii) with
respect to each Non-MERS Mortgage Loan,
an
original Assignment of the Mortgage executed in the following form: “U.S. Bank
National Association, as Trustee (Bayview),” or in blank;
(iv) with
respect to each Non-MERS Mortgage Loan, the original Assignment or Assignments
of the Mortgage and if such Assignment of Mortgage is not executed in blank,
originals or copies of all intervening assignments showing a complete chain
of
assignment from the originator (or, if applicable, from the U.S. Department
of
Housing and Urban Development) to the Person assigning the Mortgage to the
Trustee as contemplated by the immediately preceding clause (iii), or, in the
case of a Cooperative Loan, an original Assignment of the Security Agreement;
provided,
however,
that
such Assignment or Assignments of Mortgage need not be delivered in the case
of
a Mortgage for which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico;
(v) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any;
(vi) with
respect to each Mortgage Loan other than a Cooperative Loan, the original
lender’s title insurance policy or attorney’s opinion of title or a copy thereof
certified as true and correct by the applicable insurer, together with all
endorsements or riders that were issued with or subsequent to the issuance
of
such policy, insuring the priority of the Mortgage as a first lien or junior
lien, as applicable, on the Mortgaged Property represented therein as a fee
interest vested in the Mortgagor, or in the event such original title policy
is
unavailable, a written commitment or uniform binder or preliminary report of
title issued by the title insurance or escrow company or a copy thereof
certified by the title company, with the original policy of title insurance
to
be delivered within one year of the Closing Date;
(vii) with
respect to any Cooperative Loan, the following documents: the Security
Agreement; a stock certificate evidencing the Cooperative Shares and related
stock power; Proprietary Lease; and Recognition Agreement;
(viii) with
respect to each Mortgage Loan insured by the FHA, the original or a copy of
the
Mortgage Loan Certificate, and as to any Mortgage Loan guaranteed by the VA,
the
original VA Loan Guaranty Certificate, or in each case a “duplicate original”
thereof in accordance with applicable Regulations; and
(ix) if
any
assignment of leases is separate from the Mortgage, the original or copy
thereof, together with an executed reassignment of such instrument to the
Trustee.
With
respect to each Mortgage Loan other than a MERS Mortgage Loan, the Depositor
shall either (i) deliver an Opinion of Counsel (which must be independent
counsel) acceptable to the Trustee and the Rating Agencies, to the effect that
recording in related jurisdiction is not required to protect the Trustee’s
interest in the related Mortgage Loan or (ii) promptly (and in no event later
than 30 Business Days following the Closing Date) submit or cause to be
submitted for recording, at the Depositor’s own expense, in the appropriate
public office, each Assignment referred to in Sections 2.01(iii) or (iv) above.
In the event that any such Assignment is lost or returned unrecorded because
of
a defect therein, the Depositor shall promptly prepare or cause to be prepared
a
substitute Assignment or cure or cause to be cured such defect, as the case
may
be, and thereafter cause each such Assignment to be duly recorded.
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With
respect to each MERS Mortgage Loan, the Trustee, at the expense of the Depositor
and at the direction and with the cooperation of the applicable Servicer, shall
cause to be taken such actions as are necessary to cause the Trustee to be
clearly identified as the owner of each such Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS.
In
connection with the assignment of any MERS Mortgage Loan, the Depositor further
agrees that it will cause, at the Depositor’s expense, within 30 Business Days
after the Closing Date, the MERS system to indicate that such Mortgage Loans
have been assigned by the Depositor to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans that are repurchased in accordance with this
Agreement) in such computer files (a) the code in the field that identifies
the
Trustee and (b) the code in the field “Pool Field” which identifies the series
of the Certificates issued. The Depositor further agrees that, within 30
Business Days after the Closing Date, it will provide evidence satisfactory
to
the Trustee that the requirements set forth in the immediately preceding
sentence have been complied with and that it will not permit the Master Servicer
to, and the Master Servicer agrees that it will not, alter the codes referenced
in this paragraph with respect to any Mortgage Loan during the term of this
Agreement unless and until such Mortgage Loan is repurchased in accordance
with
the terms of this Agreement.
If
any
original Mortgage Note referred to in Section 2.01(i)(A) cannot be located,
the
obligation of the Depositor to deliver such documents shall be deemed to be
satisfied upon delivery to the Trustee of an original affidavit certifying
that
the original Mortgage Note has been lost, misplaced or destroyed. If any of
the
documents referred to in Section 2.01(i)(B) or Section 2.01(iii) 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 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 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. Notice shall be provided
to the Trustee and the Rating Agencies by the Seller if delivery pursuant to
clause (2) above will be made more than 180 days after the Closing Date. If
the
original lender’s title insurance policy was not delivered pursuant to Section
2.01(vi) above, the Depositor shall deliver or cause to be delivered to the
Trustee, promptly after receipt thereof, the original lender’s title insurance
policy. The Depositor shall deliver or cause to be delivered to the Trustee
promptly upon receipt thereof any other original 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.
65
All
original documents relating to the Mortgage Loans that are not delivered to
the
Trustee are and shall be held by or on behalf of the Seller, the Depositor,
the
Servicers or the Master Servicer, as the case may be, in trust for the benefit
of the Trustee on behalf of the Certificateholders. In the event that any such
original document is required pursuant to the terms of this Section to be a
part
of a Mortgage File, such document shall be delivered promptly to the Trustee.
Any such original document delivered to or held by the Depositor that is not
required pursuant to the terms of this Section to be a part of a Mortgage File,
shall be delivered promptly to the related Servicer.
The
Depositor shall cooperate with the Trustee in providing any required transfer
documentation with respect to such conveyance. Any payment received by the
Depositor that shall be due to the Trust Fund hereunder shall be paid
immediately to the Trustee.
In
addition, the Depositor herewith delivers to the Trustee an executed copy of
the
Purchase Agreement, the BFPT II Assignment Agreement, the Assignment Agreements
and the Diligence Agreement.
Section
2.02. Acceptance
and Acknowledgement by Trustee.
Subject
to the provisions of Section 2.01, the Trustee acknowledges receipt of the
assets transferred by the Depositor to be included in the Trust Fund and has
directed that the documents referred to in Section 2.01 and all other assets
included in the definition of “Trust Fund” be delivered to the
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 by it of the documents referred to
in
Section 2.01 (other than such documents described in Section 2.01(v)) 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” from time to
time in
trust
for the benefit of all present and future Certificateholders.
At
or
prior to the Closing Date, the Trustee shall certify in substantially the form
attached hereto as Exhibit B that with respect to each Mortgage Loan listed
in
the Mortgage Loan Schedule (other than any Mortgage Loan specifically identified
in the exception report annexed thereto as not being covered by such
certification) the related Mortgage File contains the documents specified in
Exhibit B.
The
Trustee agrees, for the benefit of the Certificateholders, to review each
Mortgage File within 45 days after the Closing Date (or, with respect to any
document delivered after the Closing Date, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage Loan, within 45 days after the
assignment thereof) and to certify, in substantially the form attached hereto
as
Exhibit C 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
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 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 (i) through (iii) of the definition of Mortgage Loan
Schedule contained herein accurately reflects information set forth in the
Mortgage File. It is herein acknowledged that, in conducting such review, the
Trustee is not under any duty or obligation (i) to inspect, review or examine
any such documents, instruments, certificates or other papers to determine
that
they are genuine, enforceable, or appropriate for the represented purpose or
that they have actually been recorded or that they are other than what they
purport to be on their face, or (ii) to determine whether any Mortgage File
should include any of the documents specified in clause (v) of Section 2.01.
In
addition, the Trustee makes no representation or warranty regarding
collectibility, insurability, effectiveness or suitability of any Mortgage
Loan.
66
Prior
to
the first anniversary date of this Agreement, the Trustee shall deliver to
the
Depositor and the Master Servicer a final certification in the form annexed
hereto as Exhibit D evidencing the completeness of the Mortgage Files, 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 finds any document or
documents constituting a part of a Mortgage File to be missing or defective
in
any material respect, at the conclusion of its review the Trustee shall so
notify the Depositor. In addition, upon the discovery by the Trustee, the
Depositor 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 the Seller in the related Revolving Purchase Agreement in
respect of any Re-sold Mortgage Loan or in the Purchase Agreement in respect
of
any other Mortgage Loan or by the Depositor in this Agreement which materially
adversely affects such Mortgage Loan or the interests of the related
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties.
Section
2.03. Repurchase
or Substitution of Mortgage Loans by the Seller or the Depositor.
(a) Pursuant
to the Purchase Agreement, the Seller has made certain representations and
warranties as to the characteristics of the Mortgage Loans as of the Closing
Date, including representations and warranties that no Mortgage Loan is a
“high-cost home loan” as defined under any local, state, or federal laws, and
the Seller, the Depositor and the Trustee intend that the Mortgage Loans
(including any Qualified Substitute Mortgage Loans) included in the Trust Fund
satisfy such representations and warranties. Upon discovery or receipt of notice
of (i) any materially defective document in, or that a document is missing
from,
a Mortgage File, (ii) the breach by the Seller of the representation set forth
in Section 6(j) of the Purchase Agreement or (iii) the breach by the Seller
of
any other representation, warranty or covenant under the related Revolving
Purchase Agreement or the Diligence Agreement in respect of any Re-sold Mortgage
Loan or the Purchase Agreement in respect of any Mortgage Loan that in the
case
of this clause (iii) materially and adversely affects the value of such Mortgage
Loan or the interest therein of the Certificateholders, the Trustee shall
promptly notify the Seller of such defect, missing document or breach and
request that the Seller deliver such missing document or cure such defect or
breach within 90 days from the date the Seller was notified of such missing
document, defect or breach, and if the Seller does not deliver such missing
document or cure such defect or breach in all material respects during such
period, the Trustee shall enforce the Seller’s obligation under the related
Revolving Purchase Agreement or the Diligence Agreement or the Purchase
Agreement (i) in connection with any such breach that could not reasonably
have
been cured within such 90 day period, if the Seller shall have commenced to
cure
such breach within such 90 day period, to proceed thereafter diligently and
expeditiously to cure the same within the additional period provided under
the
related Revolving Purchase Agreement, the Diligence Agreement or the Purchase
Agreement, (ii) in connection with any such breach (subject to clause (i) above)
or any missing or defective document required to be delivered pursuant to
Section 2.01(i) or 2.01(ii)(A), to purchase such Mortgage Loan from the Trust
Fund at the Purchase Price within 120 days after the date on which the Seller
was notified of such breach, and (iii) in connection with any other document
required to be delivered pursuant to Section 2.01 hereof that is missing or
defective, notwithstanding any delivery of an affidavit with respect to a
missing Mortgage Note pursuant to Section 2.01, to purchase such Mortgage Loan
from the Trust Fund at the Purchase Price within 10 Business Days after receipt
of notification from the Trustee that the absence of such document or defect
with respect thereto has materially impaired the ability of the Trustee to
enforce the related Mortgage Note or Mortgage, in each case if and to the extent
that the Seller is obligated to do so under the related Revolving Purchase
Agreement, the Diligence Agreement or the Purchase Agreement, as applicable.
The
Trustee shall also enforce the Seller’s indemnification obligations under the
related Revolving Purchase Agreement, the Diligence Agreement or the Purchase
Agreement, if applicable. The Purchase Price for the repurchased Mortgage Loan
shall be deposited in the Collection Account and the Trustee, upon receipt
of
written certification from the Master Servicer of such deposit, shall release
to
the Seller the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
Seller shall furnish to it and as shall be necessary to vest in the Seller
any
Mortgage Loan released pursuant hereto and the Trustee shall have no further
responsibility with regard to such Mortgage File. In lieu of purchasing any
such
Mortgage Loan as provided above, if so provided in the related Revolving
Purchase Agreement, the Diligence Agreement or the Purchase Agreement, as
applicable, the Seller 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). It is understood and agreed that
the
obligation of the Seller to cure, 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,
or
to indemnify the Trust Fund or the Trustee, shall constitute the sole remedy
respecting such omission, defect or breach available to the Trustee on behalf
of
the Certificateholders.
67
In
addition, if the Value of REO Property from Foreclosure Restricted Loans would
equal or exceed 0.75% of the aggregate Principal Balance of the Mortgage Loans
as of the end of any Due Period, the Seller, in accordance with the Purchase
Agreement, shall purchase at fair market value on or prior to the related
Distribution Date sufficient REO Property related to Foreclosure Restricted
Loans or Foreclosure Restricted Loans which are in default to cause the Trustee
to hold REO Property related to Foreclosure Restricted Loans with a Value of
less than 0.75% of the aggregate Principal Balance of the Mortgage Loans and
such proceeds shall be treated as received during the related Prepayment Period.
For purposes of this paragraph, the “Value” of REO Property related to a
Foreclosure Restricted Loan shall be treated as equal to the Principal Balance
of the related Foreclosure Restricted Loan plus
interest
that had accrued on such Mortgage Loan as of the date of acquisition of the
REO
Property by the Trustee. The Trustee shall enforce the Seller’s obligations
under this paragraph in accordance with the provision of the preceding paragraph
of this Section with respect to breaches of representations and
warranties.
68
In
the
event that the purchase of a Foreclosure Restricted Loan cannot be effected
prior to the acquisition of title to (or beneficial ownership interest in)
the
related REO Property and the acquisition of such title (or such beneficial
ownership interest) would cause the limit described in the preceding paragraph
to be exceeded, the Seller’s purchase of the related REO Property shall be
deemed to have occurred on the date of (and immediately prior to) such
acquisition of title or beneficial ownership interest and the fair market value
for such Foreclosure Restricted Loan (which shall be computed as of such date)
shall be paid by the Seller promptly upon notice from the Trustee that such
title or beneficial ownership interest has been acquired.
The
Seller shall have the right, and the obligation, to repurchase Mortgage Loans
from the Trust Fund to the limited extent provided in Section 7 of the Purchase
Agreement or the Revolving Purchase Agreements, as applicable, and in this
Section. Any repurchase of a Mortgage Loan by the Seller pursuant to Section
7
of the Purchase Agreement or a Revolving Purchase Agreement shall be effected
in
accordance with the provisions of this Section.
The
Seller shall have the option, but not the obligation, to substitute a Qualified
Substitute Mortgage Loan for a Removable Mortgage Loan in the manner and subject
to the limitations set forth in Section 2.03(d). The Seller’s option shall be
exercisable on the date that such Mortgage Loan becomes 30 days delinquent,
provided
that in
no event shall any such substitution of a Removable Mortgage Loan occur after
September 30, 2007. If the Seller exercises such option with respect to any
Removable Mortgage Loan, such Mortgage Loan shall be removed from the Trust
Fund
(in which case it shall become a Deleted Mortgage Loan). Without regard to
whether the related Mortgagor subsequently makes a late Monthly Payment, the
Seller shall retain its right to exercise the option described
above.
(b) Within
90
days of the earlier of discovery by the Depositor or receipt of notice by the
Depositor of the breach of any representation or warranty of the Depositor
set
forth in Section 3.03 with respect to any Mortgage Loan, which materially and
adversely affects the value of such Mortgage Loan or the interest therein of
the
Certificateholders, and that does not also constitute a breach of a
representation or warranty of the Seller in the related Revolving Purchase
Agreement, the Depositor shall (i) cure such breach in all material respects,
(ii) repurchase the Mortgage Loan from the Trustee at the Purchase Price or
(iii) remove such Mortgage Loan 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). The Purchase Price for any repurchased Mortgage Loan shall be delivered
to the Master Servicer for deposit in the Collection Account, and the Trustee,
upon receipt of written certification from the Master Servicer of such deposit,
shall at the Depositor’s direction release to the Depositor the related Mortgage
File and shall execute and deliver such instruments of transfer or assignment
furnished by the Depositor, in each case without recourse, as the Depositor
shall furnish to it and as shall be necessary to vest in the Depositor any
Mortgage Loan released pursuant hereto.
69
(c) Within
90
days of the earlier of discovery by the Master Servicer or receipt of notice
by
the Master Servicer of the breach of any representation, warranty or covenant
of
the Master Servicer set forth in Section 3.01 which materially and adversely
affects the interests of the Certificateholders in any Mortgage Loan, the Master
Servicer shall cure such breach in all material respects.
(d) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a), in the case of the Seller, or Section 2.03(b),
in the case of the Depositor, must be effected prior to the date that is two
years after the Closing Date, unless the Seller delivers to the Trustee an
Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
either the Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such substitution will not result in an Adverse REMIC Event.
With
respect to any Deleted Mortgage Loan for which the Seller or the Depositor
substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution
shall be effected by the Seller or the Depositor, as the case may be, by
delivering to the Trustee in exchange for such Qualified Substitute Mortgage
Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee,
and such other documents and agreements, with all necessary endorsements
thereon, as are required by Section 2.01, together with an Officer’s Certificate
providing that each such Qualified Substitute Mortgage Loan satisfies the
definition thereof and specifying the Substitution Amount, if any, in connection
with such substitution. The Trustee shall acknowledge receipt of such Qualified
Substitute Mortgage Loan or Loans and, within 45 Business Days thereafter,
review such documents as specified in Section 2.02 and deliver to the Depositor
and the Master Servicer, with respect to such Qualified Substitute Mortgage
Loan
or Loans, a certification substantially in the form attached hereto as Exhibit
C, with any applicable exceptions noted thereon. Within one year of the date
of
substitution, the Trustee shall deliver to the Depositor and the Master Servicer
a certification substantially in the form of Exhibit D hereto 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 Due Period of substitution will not be part of the Trust
Fund and will be retained by the Depositor or the Seller, as the case may be.
For the Due Period of substitution, distributions to Certificateholders will
reflect the collections and recoveries in respect of such Deleted Mortgage
Loan
in such Due Period and the Depositor or the Seller, as the case may be, 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 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 Trustee and to the Master Servicer. Upon such
substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute
a Mortgage Loan hereunder and shall be subject in all respects to the terms
of
this Agreement and the related Revolving Purchase Agreement if such Qualified
Substitute Mortgage Loan will replace a Re-sold Mortgage Loan or and the
Purchase Agreement if the Qualified Substitution Mortgage Loan will replace
any
other Mortgage Loan, including all applicable representations and warranties
thereof included in the Purchase Agreement or the related Revolving Purchase
Agreement, as applicable, as of the date of substitution. In the case of any
substitution effected by the Depositor, the Qualified Substitute Mortgage Loan
shall have been acquired by the Depositor from the Seller pursuant to the
Purchase Agreement and Depositor shall assign to the Trustee the representations
and warranties made by the Seller with respect to such Qualified Substitute
Mortgage Loan.
70
For
any
month in which the Depositor or the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Depositor
or the Seller, as applicable, will determine the amount (the “Substitution
Amount”), 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 principal balance thereof as of the date of substitution,
together with one month’s interest on such principal balance at the applicable
Mortgage Rate. On the date of such substitution, the Depositor or the Seller,
as
the case may be, will deliver or cause to be delivered to the Master Servicer
for deposit in the Collection Account an amount equal to the Substitution
Amount, if any, and the Trustee, upon receipt of the related Qualified
Substitute Mortgage Loan or Loans and certification by the Master Servicer
of
such deposit, shall release to the Depositor or the Seller, as the case may
be,
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 Depositor or the Seller, as the case may be, shall deliver to it and as
shall be necessary to vest therein any Deleted Mortgage Loan released pursuant
hereto.
Notwithstanding
anything to the contrary set forth in this Agreement, upon discovery by the
Depositor, the Master Servicer or the Trustee that any Mortgage Loan does not
constitute a “qualified mortgage” within the meaning of Section 860G(a)(3) of
the Code, the party discovering such fact shall promptly (and in any event
within five (5) Business Days of discovery) give written notice thereof to
the
other parties. In connection therewith, the Trustee shall require the Seller
within 90 days of such discovery, at the Seller’s option, to either (i)
substitute, if the conditions in Section 2.03(d) with respect to substitutions
are satisfied, a Qualified Substitute Mortgage Loan for the affected Mortgage
Loan, or (ii) repurchase the affected Mortgage Loan in the same manner as it
would a Mortgage Loan for a breach of representation or warranty made pursuant
to this Section 2.03. The Trustee shall reconvey to the Seller 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 contained in this Section 2.03.
Section
2.04. Grant
of Security Interest; Intended Characterization.
(a) It
is
intended that the conveyance by the Depositor to the Trustee of the Mortgage
Loans and other assets in the Trust Fund, as provided for in Section 2.01,
be
construed as a sale by the Depositor to the Trustee of such assets for the
benefit of the Certificateholders. Further, it is not intended that any such
conveyance be deemed to be a pledge of the Mortgage Loans by the Depositor
to
the Trustee to secure a debt or other obligation of the Depositor. However,
in
the event that the Mortgage Loans are held to be property of the Depositor
or if
for any reason this Agreement is held or deemed to create a security interest
in
the Mortgage Loans and other assets in the Trust Fund and the Supplemental
Interest Trust, then it is intended that (a) this Agreement shall also be deemed
to be a security agreement within the meaning of Articles 8 and 9 of the New
York UCC (or the Relevant UCC if not the New York UCC); (b) the conveyances
provided for in Section 2.01 shall be deemed to be (1) a grant by the
Depositor to the Trustee of a security interest in all of the Depositor’s right
(including the power to convey title thereto), title and interest, whether
now
owned or hereafter acquired, in and to (A) the Mortgage Loans, including with
respect to each Mortgage Loan, the Mortgage Notes, the Mortgages, any related
insurance policies and all other documents in the related Mortgage Files, (B)
all amounts payable pursuant to the Mortgage Loans in accordance with the terms
thereof, (C) any Eligible Investments held in any Trust Account, (D) all
Holdback Amounts, (E) any and all general intangibles consisting of, arising
from or relating to any of the foregoing, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or
other property, including without limitation all amounts from time to time
held
or invested in the Trust Accounts, whether in the form of cash, instruments,
securities or other property and (F) the Supplemental Interest Trust and all
proceeds of any and all property constituting the Supplemental Interest Trust
and (2) an assignment by the Depositor to the Trustee of any security interest
in any and all of the Depositor’s right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and
to
the property described in the foregoing clauses (1)(A), (B), (C), (D), (E)
and
(F) (such security interest being, to the extent of the assets that constitute
the Supplemental Interest Trust, pari
passu
with the
security interest as provided in clause (c) below; (c) the Swap Counterparty
shall be deemed, during the term of the Swap Agreement and while the Swap
Agreement is the property of the Trustee, to have a security interest in all
of
the assets that constitute the Supplemental Interest Trust, but only to the
extent of such Swap Counterparty’s right to payment under the Swap Agreement
(such security interest being pari
passu
with the
security interest as provided in clause (b) above); (d) the possession by the
Trustee or any agent of the Trustee, on behalf of Certificateholders, of
Mortgage Notes or such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be “possession by the
secured party,” or possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security interest pursuant to
the
New York UCC and any other Relevant UCC (including, without limitation, Section
9-313, 8-313 or 8-321 thereof); and (e) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts
or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee on behalf of Certificateholders for the purpose of perfecting
such security interest under applicable law.
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(b) The
Depositor and, at the Depositor’s direction, the Trustee on behalf of
Certificateholders shall, to the extent consistent with this Agreement, take
such reasonable actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will
be
maintained as such throughout the term of this Agreement. Without limiting
the
generality of the foregoing, the Depositor shall prepare and forward for filing,
or shall cause to be forwarded for filing, at the expense of the Depositor,
all
filings necessary to maintain the effectiveness of any original filings
necessary under the Relevant UCC to perfect the Trustee’s security interest in
or lien on the Mortgage Loans as evidenced by an Officer’s Certificate of the
Depositor, including without limitation (x) continuation statements, and (y)
such other statements as may be occasioned by (1) any change of name of the
Seller, the Depositor or the Trustee, (2) any change of location of the place
of
business or the chief executive office of the Seller or the Depositor or (3)
any
transfer of any interest of the Seller or the Depositor in any Mortgage
Loan.
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The
Depositor shall not organize under the law of any jurisdiction other than the
State under which it is organized as of the Closing Date (whether changing
its
jurisdiction of organization or organizing under an additional jurisdiction)
without giving 30 days prior written notice of such action to its immediate
and
mediate transferee, including the Trustee. Before effecting such change, the
Depositor shall prepare and file in the appropriate filing office any financing
statements or other statements necessary to continue the perfection of the
interests of its immediate and mediate transferees, including the Trustee,
in
the Mortgage Loans. In connection with the transactions contemplated by the
Basic Documents, the Depositor authorizes its immediate or mediate transferee,
including the Trustee, to file in any filing office any initial financing
statements, any amendments to financing statements, any continuation statements,
or any other statements or filings described in this Section
2.04(b).
(c) The
Depositor shall not take any action inconsistent with the sale by the Depositor
of all of its right, title and interest in and to the Trust Fund and shall
indicate or shall cause to be indicated in its records and records held on
its
behalf that ownership of each Mortgage Loan and the other property of the Trust
Fund is held by the Trustee on behalf of Certificateholders. In addition, the
Depositor shall respond to any inquiries from third parties with respect to
ownership of a Mortgage Loan or any other property of the Trust Fund by stating
that it is not the owner of such Mortgage Loan and that ownership of such
Mortgage Loan or other property of the Trust Fund is held by the Trustee on
behalf of the Certificateholders.
Section
2.05. Transmission
of Mortgage Files.
Written
instructions as to the method of shipment and shipper(s) the Trustee is directed
to utilize in connection with transmission of files and loan documents in the
performance of the Trustee’s duties hereunder shall be delivered by the
applicable Servicer (or if the related Mortgage Loan is being serviced directly
by the Master Servicer, the Master Servicer) to the Trustee prior to any
shipment of any Mortgage Files and loan documents hereunder. In the event that
the Servicer (or if the related Mortgage Loan is being serviced directly by
the
Master Servicer, the Master Servicer) fails to provide such written
instructions, the Trustee shall be hereby authorized to use a nationally
recognized courier service. The Servicer (or if the related Mortgage Loan is
being serviced directly by the Master Servicer, the Master Servicer) will
arrange for the provision of such services at its sole cost and expense (or,
at
the Trustee’s option, reimburse the Trustee for all costs and expenses incurred
by the Trustee consistent with such instructions or for having used an overnight
courier service) and will maintain such insurance in connection with shipment
of
the Mortgage Files against loss or damage to files and loan documents as the
Servicer (or if the related Mortgage Loan is being serviced directly by the
Master Servicer, the Master Servicer) deems appropriate. Without limiting the
generality of the provisions of Section 8.04(a) hereof, it is expressly agreed
that in no event shall the Trustee have any liability for any losses or damages
to any Person with respect to the Mortgage Files arising out of actions of
the
Trustee consistent with instructions of the Servicer (or if the related Mortgage
Loan is being serviced directly by the Master Servicer, the Master
Servicer).
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Section
2.06. REMIC
Matters.
(a) The
Preliminary Statement to this Agreement sets forth the designations and “latest
possible maturity date” for federal income tax purposes of all interests in each
of the REMICs created hereby. The “tax matters person” with respect to each
REMIC hereunder shall be the Trustee and the Trustee shall hold the Tax Matters
Person Certificate. Each REMIC’s fiscal year shall be the calendar
year.
(b) The
Trustee shall treat each of the Reserve Fund and the Supplemental Interest
Trust
as an outside reserve fund within the meaning of Treasury Regulation Section
1.860G-2(h) that is owned by the Class X Certificateholders and that is not
an
asset of any REMIC. For federal and state income tax purposes, the Class X
Certificateholders shall be deemed to be the owners of each of the Reserve
Fund
and the Supplemental Interest Trust. Upon the termination of the Trust, all
amounts remaining on deposit in each of the Reserve Fund and the Supplemental
Interest Trust will be released from the lien of the Trust Fund and distributed
to the Class X Certificateholders or their designees.
(c) The
Trustee shall treat all withdrawals from the Reserve Fund in respect of Loss
Amounts and Deferred Principal Amounts as payments made pursuant to a “credit
enhancement contract” within the meaning of Treasury Regulation Section
1.860G-2(c) that is owned by REMIC 1.
(d) The
Trustee shall treat the holders of the Group 1 Certificates, Class A-IO
Certificates and the LIBOR Certificates as having entered into a notional
principal contract with respect to the holders of the Class X Certificates.
Pursuant to each such notional principal contract, all holders of Group 1
Certificates, Class A-IO Certificates and the LIBOR Certificates will be treated
as having agreed to pay, on each Distribution Date, to the holders of the Class
X Certificates an aggregate amount equal to the excess, if any, of (i) the
amount payable on the Interest in REMIC 4 corresponding to such Class of
Certificates on such Distribution Date over (ii) the amount payable on such
Class of Certificates on such Distribution Date (such excess, an “AFC
Shortfall”). Further, the Trustee shall treat the Class X Certificateholders as
having agreed to pay the Holders of the Group 1 Certificates, Class A-IO
Certificates and the LIBOR Certificates any interest payments in excess of
the
interest payable on the Interest in REMIC 4 corresponding to such Class of
Certificates. Finally, the Trustee shall treat the Class X Certificateholders
as
having agreed to pay to the Class A-IO Certificateholders the excess, if any,
of
the amount distributable on the Class A-IO Certificates over the amount payable
on the corresponding REMIC interest in REMIC 4. Any payments to the Certificates
in light of the foregoing shall not be payments with respect to a “regular
interest” in a REMIC within the meaning of Code Section 860G(a)(1). However, any
payment from the Group 1 Certificates, Class A-IO Certificates or the LIBOR
Certificates of an AFC Shortfall 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 to the Reserve Fund pursuant
to the notional principal contract.
(e) Thus,
each Group 1 Certificate and each LIBOR Certificate shall be treated as
representing not only ownership of a regular interest in REMIC 4, but also
rights and obligations with respect to a notional principal contract. For tax
purposes, this notional principal contract will be deemed to have a value of
$95,662.24
in
respect of Class 1-A1 Certificates, a value of $122,789.26 in respect of Class
1-A2 Certificates, a value of $45,385.85 in respect of Class 1-A3 Certificates,
a value of $116,022.34 in respect of Class 1-A4 Certificates, a value of
$102,354.88 in respect of Class 1-A5 Certificates, a value of $82,904.91 in
respect of Class 2-A1 Certificates, a value of $109,700.33 in respect of Class
2-A2 Certificates, a value of $255,344.03 in respect of Class 2-A3 Certificates,
a value of $278,376.00 in respect of Class 2-A4 Certificates, a value of
$161,892.85 in respect of Class M-1 Certificates, a value of $45,527.94 in
respect of Class M-2 Certificates, a value of $80,458.08 in respect of Class
M-3
Certificates, a value of $36,132.31 in respect of Class M-4 Certificates, a
value of $33,177.61 in respect of Class B-1 Certificates and a value of
$28,744.80 in respect of Class B-2 Certificates.
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(f) Notwithstanding
the priority and sources of payments set forth in Article VI hereof or
otherwise, the Trustee shall account for all distributions on the Certificates
as set forth in this section. In no event shall any payments provided for in
this section be treated as payments
with respect to a “regular interest” in a REMIC within the meaning of Code
Section 860G(a)(1).
(g) Following
the Closing Date, none of the Depositor, the Trustee or the Master Servicer
shall accept any contributions of assets to any REMIC created hereunder unless
the Depositor, the Trustee or the Master Servicer shall have received an Opinion
of Counsel (at the expense of the party seeking to make such contribution)
to
the effect that the inclusion of such assets in a REMIC will not cause an
Adverse REMIC Event.
(h) None
of
the Depositor, the Trustee or the Master Servicer shall enter into any
arrangement by which a REMIC will receive a fee or other compensation for
services nor permit such REMIC to receive any income from assets other than
“qualified mortgages” as defined in Section 860G(a)(3) of the Code or “permitted
investments” as defined in Section 860G(a)(5) of the Code.
(i) None
of
the Depositor, Trustee or the Master Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but
not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed
in
lieu of foreclosure, (ii) the termination of any REMIC created hereunder
pursuant to Article X of this Agreement or (iii) a purchase of Mortgage Loans
pursuant to Article II of this Agreement) nor acquire any assets for a REMIC,
nor sell or dispose of any investments in the Collection Account or the
Certificate Distribution Account for gain to the extent such action would result
in a tax under Section 860F(a)(2) nor accept any contributions to a REMIC after
the Closing Date (a) unless it has received an Opinion of Counsel that such
sale, disposition, substitution or acquisition will not affect adversely the
status of any REMIC created hereunder as a REMIC or (b) unless the Master
Servicer has determined in its sole discretion to indemnify the Trust Fund
against any resulting tax.
(j) The
Trustee and each beneficial owner of a Class A-IO Certificate, by its
acquisition thereof, agree to treat any Class A-IO Termination Amount paid
to
such beneficial owner as a payment made pursuant to a contract for the transfer
of such Class A-IO Certificate in connection with the termination of the Trust
Fund and to treat such payment as having been made by the purchaser of the
assets of the Trust Fund. For federal income tax purposes, this contract will
be
deemed to have a value of $5,000.
No
Class A-IO Termination Amount will be treated as having been made by any REMIC
created hereby, and no Class A-IO Termination Amount will be treated as an
amount paid on a REMIC regular interest.
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ARTICLE
III
REPRESENTATIONS,
WARRANTIES AND COVENANTS
Section
3.01. Representations
and Warranties of the Master Servicer.
The
Master Servicer hereby represents, warrants and covenants to the Depositor
and
the Trustee for their own benefit and for the benefit of the Holders of the
Certificates that, as of the Closing Date:
(i) The
Master Servicer is duly organized, validly existing and in good standing under
the laws of the United States as a national banking association, and is duly
qualified to do business, and is in good standing in each jurisdiction in which
the nature of its business requires it to be so qualified.
(ii) The
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement have been duly
authorized by all necessary corporate action on the part of the Master
Servicer.
(iii) This
Agreement, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid, legal and binding obligation of the Master
Servicer, enforceable against it in accordance with the terms hereof, except
as
the enforcement hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally and by general principles of equity (whether considered in a
proceeding or action in equity or at law).
(iv) The
Master Servicer is not in violation of, and the execution, delivery and
performance of this Agreement by the Master Servicer and its compliance with
the
terms hereof will not constitute a violation with respect to, any existing
law
or regulation or any order or decree of any court or any order, regulation
or
demand of any federal, state, municipal or governmental agency, which violation
would materially and adversely affect the condition (financial or other) or
operations of the Master Servicer or its properties or the Mortgage Loans or
would materially and adversely affect its performance hereunder. The execution,
delivery and performance of this Agreement by the Master Servicer and its
compliance with the terms hereof will not in any material respect conflict
with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice, lapse of time or both) a default under, the charter documents
or by-laws of the Master Servicer, or any material indenture, agreement,
mortgage, deed of trust or other instrument to which the Master Servicer is
a
party or by which it is bound, or result in the creation or imposition of any
lien or encumbrance upon any of its material properties pursuant to the terms
of
any such indenture, agreement, mortgage, deed of trust or other
instrument.
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(v) No
litigation, actions, proceedings or investigations are pending or, to the best
of the Master Servicer’s knowledge threatened, against the Master Servicer which
would have consequences that would prohibit its entering into this Agreement
or
that would materially and adversely affect the condition (financial or
otherwise) or operations of the Master Servicer or its properties or would
materially and adversely affect its performance hereunder, or the validity
or
enforceability of this Agreement, or prevent the consummation of any of the
transactions contemplated by this Agreement.
(vi) No
certificate of an officer, statement furnished in writing or report delivered
or
to be delivered pursuant to the terms hereof by the Master Servicer contains
or
will contain any untrue statement of a material fact or omits or will omit
to
state any material fact necessary to make the certificate, statement or report,
in light of the circumstances under which it was or will be made, not
misleading.
(vii) No
consent, approval, authorization, license or order of any court or governmental
agency or body is required for the execution, delivery and performance by the
Master Servicer of or compliance by the Master Servicer with this Agreement
or
the consummation of the transactions contemplated by this Agreement, except
for
such consents, approvals, authorizations and orders (if any) as have been
obtained.
(viii) The
Master Servicer, or an Affiliate thereof the primary business of which is the
servicing of conventional residential mortgage loans, is a Xxxxxx Xxx and
Xxxxxxx Mac approved seller/servicer, an FHA Approved Mortgagee and VA-approved
lender, and no event has occurred, including, but not limited to, a change
in
insurance coverage, which would make the Master Servicer unable to comply with
Xxxxxx Mae, Xxxxxxx Mac FHA or VA eligibility requirements or which would
require notification to any of Xxxxxx Mae, Xxxxxxx Mac, FHA or VA.
(ix) The
Master Servicer has obtained an errors and omissions insurance policy and a
fidelity bond, each of which is in full force and effect, and each of which
provides at least such coverage as is required hereunder.
Within
90
days of the earlier of discovery by the Master Servicer or receipt of notice
by
the Master Servicer of the breach of any representation, warranty or covenant
of
the Master Servicer set forth in this Section which materially and adversely
affects the interests of the Certificateholders in any Mortgage Loan, the Master
Servicer shall cure such breach in all material respects.
Section
3.02. Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Master Servicer and the Trustee
for their own benefit and for the benefit of the Holders of the Certificates
that as of the Closing Date:
(i) The
Depositor is a limited liability company duly formed, validly existing and
in
good standing under the laws of the State of Delaware, and is duly qualified
to
do business, and is in good standing in each jurisdiction in which the nature
of
its business requires it to be so qualified.
77
(ii) The
execution and delivery of this Agreement by the Depositor and its performance
and compliance with the terms of this Agreement have been duly authorized by
all
necessary company action on the part of the Depositor.
(iii) This
Agreement, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid, legal and binding obligation of the
Depositor, enforceable against it in accordance with the terms hereof, except
as
the enforcement hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally and by general principles of equity (whether considered in a
proceeding or action in equity or at law).
(iv) The
Depositor is not in violation of, and the execution, delivery and performance
of
this Agreement by the Depositor and its compliance with the terms hereof will
not constitute a violation with respect to, any existing law or regulation
or
any order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which violation would
materially and adversely affect the condition (financial or other) or operations
of the Depositor or its properties or would have consequences that would
adversely affect its performance hereunder. The execution, delivery and
performance of this Agreement by the Depositor and its compliance with the
terms
hereof will not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice, lapse of time or both)
a
default under, the certificate of formation or limited liability company
agreement of the Depositor, or any material indenture, agreement, mortgage,
deed
of trust or other instrument to which the Depositor is a party or by which
it is
bound, or result in the creation or imposition of any lien or encumbrance upon
any of its material properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument.
(v) No
litigation, actions, proceedings or investigations are pending or, to the best
of the Depositor’s knowledge, threatened against the Depositor which would have
consequences that would prohibit its entering into this Agreement or that would
materially and adversely affect the condition (financial or otherwise) or
operations of the Depositor or its properties or would have consequences that
would adversely affect its performance hereunder, or the validity or
enforceability of this Agreement, or prevent the consummation of any of the
transactions contemplated by this Agreement.
(vi) No
certificate of an officer, statement furnished in writing or report delivered
or
to be delivered pursuant to the terms hereof by the Depositor contains or will
contain any untrue statement of a material fact or omits or will omit to state
any material fact necessary to make the certificate, statement or report, in
light of the circumstances in which it was made or will be made, not
misleading.
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(vii) All
actions, approvals, consents, waivers, exemptions, variances, franchises,
orders, permits, authorizations, rights and licenses required to be taken,
given
or obtained, as the case may be, by or from any court or any federal, state
or
other governmental authority or agency that are required in connection with
the
execution, delivery and performance by the Depositor of this Agreement, have
been duly taken, given or obtained, as the case may be, are in full force and
effect on the date hereof, are not subject to any pending proceedings or appeals
(administrative, judicial or otherwise) and either the time within which any
appeal therefrom may be taken or review thereof may be obtained has expired
or
no review thereof may be obtained or appeal therefrom taken, and are adequate
to
authorize the consummation of the transactions contemplated by this Agreement
on
the part of the Depositor and the performance by the Depositor of its
obligations under this Agreement.
(viii) The
Depositor is conveying to the Trustee the entire interest in the Mortgage Loans,
which the Depositor has acquired from the Seller and from BFPT II, as
applicable, free and clear of any Adverse Claims created by, or for the benefit
of, the Depositor.
Section
3.03. Representations
and Warranties of the Depositor with respect to the Mortgage
Notes.
With
respect to the Mortgage Notes, the
Depositor hereby represents and warrants to the Master Servicer and the Trustee
for their own benefit and for the benefit of the Holders of the Certificates
that as of the Closing Date:
(i) The
Mortgage Notes constitute “instruments” within the meaning of the Relevant
UCC;
(ii) The
Depositor owns and has good title to the Mortgage Notes free and clear of any
lien, claim or encumbrance of any Person;
(iii) The
Depositor has received all consents and approvals required by the terms of
the
Mortgage Notes to the transfer of the Mortgage Notes hereunder to the
Trustee;
(iv) All
original executed copies of each Mortgage Note have been or will be delivered
to
the Trustee, as set forth in this Agreement;
(v) The
Depositor has received a written acknowledgement from the Trustee that the
Trustee is holding the Mortgage Notes solely on behalf and for the benefit
of
the Certificateholders;
(vi) Other
than the transfer to the Trustee pursuant to this Agreement, the Depositor
has
not pledged, assigned, sold, granted a security interest in, or otherwise
conveyed any of the Mortgage Notes. The Depositor has not authorized the filing
of and is not aware of any financing statements against the Depositor that
include a description of the collateral covering the Mortgage Notes other than
a
financing statement relating to the transfer to the Trustee hereunder or that
has been terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor; and
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(vii) None
of
the Mortgage Notes has any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the Trustee
on
behalf of Certificateholders.
The
representations and warranties set forth in this Section shall survive the
Closing Date and shall not be waived.
ARTICLE
IV
ADMINISTRATION
AND MASTER SERVICING OF MORTGAGE LOANS
Section
4.01. Duties
of the Master Servicer.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicers to service and administer their respective Mortgage Loans in
accordance with the terms of the applicable Servicing Agreements, except the
activities of the Servicers with respect to Mortgage Loans that are in default,
including collection activity, modification of Mortgage Loans, foreclosure,
and
disposition of REO Property, the processing of any FHA or VA claims and the
activities of any subservicers (“Excluded Servicing Obligations”), and shall
have full power and authority to do any and all things which it may deem
necessary or desirable in connection with such master servicing and
administration. In performing its obligations hereunder, the Master Servicer
shall act in a manner consistent with Accepted Master Servicing Practices.
Furthermore, the Master Servicer shall oversee and consult with each Servicer
as
necessary from time-to-time to carry out the Master Servicer’s obligations
hereunder, shall, from time to time, receive, review and evaluate all reports,
information and other data provided to the Master Servicer by each Servicer
and
shall otherwise exercise its reasonable best efforts to cause each Servicer
to
perform and observe the covenants, obligations and conditions to be performed
or
observed by such Servicer under the applicable Servicing Agreement. The Master
Servicer shall independently and separately monitor each Servicer’s servicing
activities with respect to each related Mortgage Loan, reconcile the results
of
such monitoring with such information provided in the previous sentence on
a
monthly basis and coordinate corrective adjustments to the Servicers’ and Master
Servicer’s records, and based on such reconciled and corrected information,
prepare the report specified in Section 4.27 and any other information,
statements and reports required hereunder. Notwithstanding anything in this
Agreement or any Servicing Agreement to the contrary, the Master Servicer shall
have no duty or obligation to supervise, monitor or oversee the activities
of
any Servicer or to enforce the obligations of any Servicer under its Servicing
Agreement with respect to (i) calculation of payments due under any Simple
Interest Mortgage Loans or any Non-Monthly Mortgage Loans, (ii) the
collection of amounts with respect to the Mortgage Loans described on the
Mortgage Loan Schedule attached as Schedule I-B hereto representing principal
and/or interest due and owing on any such Mortgage Loan prior to the Cut-off
Date or (iii) any Additional Collateral or any limited purpose surety bond
relating thereto, including, without limitation, the collection of any amounts
owing to the Trust Fund in respect thereof (unless and until the Master Servicer
shall have assumed the obligations of such Servicer as successor servicer under
the related Servicing Agreement, in which case, as successor servicer, it shall
be bound to serve and administer the Additional Collateral and any related
limited purpose surety bond in accordance with the provisions of such Servicing
Agreement). The Master Servicer shall reconcile the results of its Mortgage
Loan
monitoring with the actual remittances of the Servicers to the Collection
Account pursuant to the applicable Servicing Agreements.
80
To
the
extent applicable to the obligations of the Master Servicer under this
agreement, the Master Servicer shall at all times comply with the Housing Act,
FHA Regulations, the Readjustment Act, VA Regulations, and any administrative
guidelines issued thereunder.
Section
4.02. Monitoring
of Servicers’ Performance.
Subject
to Section 4.01, the Master Servicer shall be responsible for reporting to
the
Trustee and the Depositor the compliance by each Servicer with its duties under
the related Servicing Agreement. In the review of each Servicer’s activities,
the Master Servicer may rely upon an Officer’s Certificate of the Servicer with
regard to such Servicer’s compliance with the terms of its Servicing Agreement.
In the event that the Master Servicer, in its reasonable judgment, determines
that it requires reports from any Servicer in addition to the reports such
Servicer is required to deliver to the Master Servicer pursuant to the
applicable Servicing Agreement and the Master Servicer is obligated to reimburse
the Servicer for the cost of such additional reports, the Master Servicer shall
be reimbursed for such amounts from the Collection Account. In the event that
the Master Servicer, in its judgment, determines that a Servicer should be
terminated in accordance with its Servicing Agreement, or that a notice should
be sent pursuant to such Servicing Agreement with respect to the occurrence
of
an event that, unless cured, would constitute grounds for such termination,
the
Master Servicer shall notify the Depositor and the Trustee thereof and, absent
instructions to the contrary from the Trustee within five days of the delivery
of such notice, the Master Servicer shall issue such notice or take such other
action as it deems appropriate.
Subject
to the provisions of Section 4.01 hereof, the Master Servicer shall require
each
Servicer to comply with the remittance requirements and other obligations set
forth in the related Servicing Agreement.
Each
Servicing Agreement shall include provisions to the effect that no modification,
waiver or variance of the terms of a Mortgage Loan will (a) change the Mortgage
Rate on any Mortgage Loan, (b) defer or forgive the payment of principal or
interest of any Mortgage Loan, (c) reduce or increase the outstanding principal
balance of the Mortgage Loan (except for actual payments of principal) or (d)
change the final maturity date of any Mortgage Loan, unless the Servicer has
determined, after consultation with its counsel, that such a modification would
not be treated as a “substantial modification” that would cause a deemed
exchange under Section 1001(a) of the Code or applicable temporary or final
regulations thereunder at any time when the Mortgage Loan is held by any REMIC
created pursuant to this Agreement, unless such Mortgage Loan is in default
or
default is reasonably foreseeable.
Reconciliations
for each Custodial Account shall be prepared by the applicable Servicer within
the number of days following the bank statement cutoff date that is specified
in
the applicable Servicing Agreement or, if no such number of days is specified,
then as provided in Item 1122(d) of Regulation AB.
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Section
4.03. Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or
trustees.
Section
4.04. Master
Servicer’s Financial Statements and Related Information.
For
each
year this Agreement is in effect, the Master Servicer shall submit to the
Trustee each Rating Agency and the Depositor a copy of the Master Servicer’s
annual unaudited financial statements on or prior to May 31 of each year, which
may be in the form of the consolidated financial statements of the Master
Servicer’s corporate parent. Such financial statements shall include a balance
sheet, income statement and statement of retained earnings.
Section
4.05. Power
to Act; Procedures.
(a) The
Master Servicer shall master service the Mortgage Loans as provided in this
Agreement and shall have full power and authority to do any and all things
that
it may deem necessary or desirable in connection with the master servicing
and
administration of the Mortgage Loans, including but not limited to the power
and
authority (i) to execute and deliver, on behalf of the Certificateholders and
the Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds
and Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable. The Trustee shall furnish the Master
Servicer, upon request, with any powers of attorney empowering the Master
Servicer or any Servicer to execute and deliver instruments of satisfaction
or
cancellation, or of partial or full release or discharge, and to foreclose
upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend
in
any court action relating to the Mortgage Loans or the Mortgaged Property,
in
accordance with the applicable Servicing Agreement and this Agreement, and
the
Trustee shall execute and deliver such other documents, as the Master Servicer
may request, necessary or appropriate 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 or
other such documents by the Master Servicer or any Servicer). If the Master
Servicer or the Trustee has been advised that it is likely that the laws of
the
state in which action is to be taken prohibit such action if taken in the name
of the Trustee or that the Trustee would be adversely affected under the “doing
business” or tax laws of such state if such action is taken in its name, then
upon request of the Trustee, the Master Servicer shall join with the Trustee
in
the appointment of a co-trustee pursuant to Section 9.08 of this Agreement.
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.
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(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall employ
procedures consistent with Accepted Master Servicing Practices.
Section
4.06. Servicing
Agreements; Enforcement of Servicers’ Obligations.
The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of each Servicer under the related Servicing
Agreement, and shall, in the event that a Servicer fails to perform its
obligations in accordance with the related Servicing Agreement, in each case
subject to Section 4.02, terminate the rights and obligations of such Servicer
thereunder and either service the related Mortgage Loans in accordance with
the
terms and provisions of the related Servicing Agreement or enter into a
Servicing Agreement with a successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Master Servicer,
in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement
from
its own funds, provided
that the
Master Servicer shall not be required to prosecute or defend any legal action
except to the extent that the Master Servicer shall have received reasonable
indemnity for its costs and expenses in pursuing such action or such amounts
are
permitted to be withdrawn from the Collection Account.
With
respect to Excluded Servicing Obligations, the obligation of the Master Servicer
to terminate the rights and obligations of the applicable Servicer is
conditioned upon the Master Servicer having notice or actual knowledge of such
Servicer’s failure to comply with the requirements of such
sections.
In
the
event that the rights and obligations of the Servicer with respect to any
Mortgage Loan listed on Schedule I-G hereto are terminated as provided in this
Section, the Master Servicer shall, to the extent consistent with this Agreement
and the applicable Servicing Agreement, appoint M&T Bank as successor
Servicer.
The
parties acknowledge that there will be a transition period, not to exceed 90
days, in order to effect the transfer of servicing to a successor Servicer.
To
the extent that the costs and expenses of the Master Servicer related to any
termination of a Servicer, appointment of a successor Servicer or the transfer
and assumption of servicing by the Master Servicer are not fully and timely
reimbursed by the Seller or the terminated Servicer, the Master Servicer shall
be entitled to reimbursement of such costs and expenses from the Collection
Account.
In
the
event that the Seller receives any amounts from a Servicer relating to a
Mortgage Loan and such amounts constitute part of the Trust Fund, the Seller
shall immediately notify the Master Servicer and transfer such amounts to the
Collection Account by wire transfer of immediately available funds.
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Section
4.07. Collection
Account.
(a) On
the
Closing Date, the Master Servicer shall open and shall thereafter maintain
an
account held in trust (the “Collection Account”), entitled “U.S. Bank National
Association, as trustee, in trust for the benefit of the Holders of Bayview
Financial Mortgage Pass-Through Trust 2007-B Mortgage Pass-Through Certificates,
Series 2007-B.” The Collection Account shall relate solely to the Certificates
issued by the Trustee hereunder, and funds in such Collection Account shall
not
be commingled with any other monies.
(b) The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Master Servicer shall establish
a
new Collection Account that is an Eligible Account within 30 days and transfer
all funds on deposit in such existing Collection Account into such new
Collection Account.
(c) The
Master Servicer will give to the Trustee prior written notice of the name and
address of the depository institution at which the Collection Account is
maintained and the account number of such Collection Account. The Master
Servicer shall take such actions as are necessary to cause the depository
institution holding the Collection Account to hold such account in the name
of
the Trustee (subject to such Master Servicer’s right to direct payments and
investments and its rights of withdrawal) under this Agreement.
(d) The
Master Servicer shall deposit into the Collection Account, no later than the
Business Day following the Closing Date, any amounts representing Monthly
Payments on the Mortgage Loans due after the Cut-off Date and received by the
Master Servicer on or before the Closing Date. Thereafter, promptly upon
receipt, the Master Servicer shall deposit or cause to be deposited in the
Collection Account all amounts remitted to it by the Servicers in respect of
the
Mortgage Loans (which deposits may be net of the Master Servicing Fee). Funds
in
the Collection Account may be invested in Eligible Investments (selected by
the
Master Servicer) which shall mature not later than the Master Servicer
Remittance Date (except that if such Eligible Investment is an obligation of
the
Trustee and such Collection Account is maintained with the Trustee, then such
Eligible Investment shall mature not later than such applicable Distribution
Date) and any such Eligible Investment shall not be sold or disposed of prior
to
its maturity. All such Eligible Investments shall be made in the name of the
Trustee (in its capacity as such) or its nominee. All income and gain realized
from any such investment shall be for the benefit of the Master Servicer and
shall be subject to its withdrawal or order from time to time and shall not
be
part of the Trust Fund. The amount of any losses incurred in respect of any
such
investments shall be deposited in the Collection Account by the Master Servicer
out of its own funds, without any right of reimbursement therefor, immediately
as realized. The Trustee has no duty with respect to and shall not be held
liable by reason of any insufficiency in the Collection Account resulting from
any investment loss on any investment included therein (except to the extent
that the Trustee is the obligor and has defaulted thereon). The foregoing
requirements for deposit in the Collection Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments of interest on funds in the Collection Account and payments in the
nature of late payment charges, assumption fees and other incidental fees and
charges relating to the Mortgage Loans need not be deposited by the Master
Servicer in the Collection Account and may be retained by the Master Servicer
or, to the extent provided in the applicable Servicing Agreement, the applicable
Servicer as additional servicing compensation. If the Master Servicer deposits
in the Collection Account any amount not required to be deposited therein,
it
may at any time withdraw such amount from the Collection Account.
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Section
4.08. Application
of Funds in the Collection Account.
The
Master Servicer shall, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes, in the following order
of priority:
(i) to
withdraw funds deposited in error in the Collection Account;
(ii) to
make
distributions of the Retained Interest to any Retained Interest Holder on each
Distribution Date, to the extent not previously made by the applicable
Servicer;
(iii) to
pay to
itself income earned, net of losses incurred, on the investment of funds
deposited in the Collection Account and any Net Prepayment Interest
Excess;
(iv) to
reimburse itself or any Servicer for previously Outstanding Advances made by
it
or by such Servicer (or by a subservicer) pursuant to Section 4.26 or otherwise
reimbursable pursuant to the terms of this Agreement or any Servicing Agreement;
it being understood, in the case of any such reimbursement, that the Master
Servicer’s or Servicer’s right thereto shall be limited to collections on the
Mortgage Loans to which such Outstanding Advances relate and shall be prior
to
the rights of the Certificateholders;
(v) to
reimburse itself or any Servicer, following a final liquidation of a Mortgage
Loan, for any amounts that represent Non-Recoverable Advances, it being
understood, in the case of any such reimbursement, that such Master Servicer’s
or Servicer’s right thereto shall be prior to the rights of the
Certificateholders;
(vi) to
reimburse itself or the applicable Servicer from Liquidation Proceeds for
Liquidation Expenses and for amounts expended by it pursuant to Sections 4.23
and 4.25(a) in good faith in connection with the restoration of damaged property
and, to the extent that Liquidation Proceeds after such reimbursement exceed
the
unpaid principal balance of the related Mortgage Loan, together with accrued
and
unpaid interest thereon at the applicable Mortgage Rate less the Master
Servicing Fee Rate and the Servicing Fee Rate for such Mortgage Loan to the
Due
Date next succeeding the date of its receipt of such Liquidation Proceeds,
to
pay to itself out of such excess the amount of any unpaid assumption fees,
late
payment charges or other Mortgagor charges on the related Mortgage Loan and
to
retain any excess remaining thereafter as additional servicing compensation,
it
being understood, in the case of any such reimbursement or payment, that such
Master Servicer’s or Servicer’s right thereto shall be prior to the rights of
the Certificateholders;
(vii) in
the
event it has elected not to pay itself the Master Servicing Fee out of any
Mortgagor payment on account of interest or other recovery with respect to
a
particular Mortgage Loan prior to the deposit of such Mortgagor payment or
recovery in the Collection Account, to pay to itself the Master Servicing Fee
for each Distribution Date and any unpaid Master Servicing Fees for prior
Distribution Dates from any Mortgagor payment as to interest or such other
recovery with respect to that Mortgage Loan, as is permitted by this
Agreement;
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(viii) to
reimburse itself for expenses incurred by and recoverable by or reimbursable
to
it or any Servicer pursuant to Sections 4.02, 4.05, 4.06, 4.19, 4.25(a) or
4.33,
or any other provision of this Agreement, to the extent expressly permitted
thereunder;
(ix) to
reimburse the Trustee and the Securities Intermediary for the following: (a)
to
the Trustee, all reasonable ordinary out-of-pocket expenses incurred or made
by
it under this Agreement, including costs of collection and the reasonable
compensation and expenses, disbursements and advances of the Trustee’s agents,
counsel, accountants and experts, in each case, subject to the limitation set
forth in Section 9.10, (b) to the Trustee, any indemnification amount
reimbursable to the Trustee pursuant to Section 9.05 and (c) to the Securities
Intermediary, expenses and indemnities reimbursable under Section 6.02 of this
Agreement.
(x) to
reimburse a Successor Master Servicer (solely in its capacity as Successor
Master Servicer), for any fee, expense or advance occasioned by a termination
of
the Master Servicer, and the assumption of such duties by the Trustee or a
Successor Master Servicer appointed by the Trustee pursuant to Section 4.13
or
4.17, in each case to the extent not reimbursed by the terminated Master
Servicer, it being understood, in the case of any such reimbursement or payment,
that the right of the Master Servicer or the Trustee thereto shall be prior
to
the rights of the Certificateholders;
(xi) to
make
payment to itself and others pursuant to any provision of this Agreement, to
the
extent expressly provided thereunder;
(xii) to
pay to
itself, a Servicer, the Seller, the Depositor or any other appropriate Person,
as the case may be, with respect to each Mortgage Loan or property acquired
in
respect thereof that has been purchased or otherwise transferred pursuant to
Sections 2.03 or 10.02, all amounts received thereon and not required to be
distributed to the Certificateholders as of the date on which the related
Principal Balance or Purchase Price is determined;
(xiii) to
reimburse any Servicer for such amounts as are due thereto from the Trust Fund
pursuant to this Agreement and have not been retained by or paid to such
Servicer, to the extent provided in such Servicing Agreement, or to reimburse
any expenses of the Trust Fund or the Trustee expressly provided for in the
Servicing Agreement;
86
(xiv) to
make
payments to the Trustee for deposit into the Certificate Distribution Account
in
the amounts and in the manner provided for in Section 6.04; and
(xv) to
clear
and terminate any Collection Account pursuant to Section 10.02.
Section
4.09. Determination
of LIBOR.
(a) On
each
LIBOR Rate Adjustment Date the Master Servicer shall determine LIBOR on the
basis of the provisions of the definition of “LIBOR.”
(b) The
establishment of LIBOR by the Master Servicer and the Master Servicer’s
subsequent calculation of the Interest Rate or Rates applicable to the LIBOR
Certificates for the relevant Accrual Period, in the absence of manifest error,
shall be final and binding. In all cases, absent manifest error, the Master
Servicer may conclusively rely on quotations of LIBOR as such quotations appear
on the Reuters screen “LIBOR01” (or such other page as may replace Reuters
screen “LIBOR01”).
Section
4.10. Termination
of Servicing Agreements; Successor Servicers.
(a) The
Master Servicer shall be entitled to terminate the rights and obligations of
any
Servicer under the applicable Servicing Agreement in accordance with the terms
and conditions of such Servicing Agreement and this Agreement. In such event,
within 90 days of such termination, the Master Servicer shall, subject to
Section 4.06, appoint a successor Servicer or shall itself (or through an
Affiliate) act as servicer of the related Mortgage Loans; provided,
however,
that
for so long as the Seller is the Servicing Rights Owner under any such Servicing
Agreement, the Seller shall have the right to appoint a successor Servicer
within thirty (30) days of the Master Servicer providing notice to the Trustee
and the Seller of the Master Servicer’s intent to terminate such Servicer,
subject to the provisions of Section 4.34 hereof. If the Master Servicer assumes
the role of successor Servicer, or until a successor Servicer is appointed,
the
Master Servicer shall (i) immediately make Advances and (ii) perform all
responsibilities, duties and liabilities of the Servicer; provided,
however,
that for
the first 90-day period following a termination of a Servicer, 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.
(b) If
the
Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the Servicer, if any, that it replaces. The
Master Servicer shall, however, be deemed to have made the representations
contained in Section 3.01 hereof as of the assumption by the Master Servicer
of
the duties of the applicable Servicer. The Master Servicer shall use reasonable
efforts to have the successor Servicer assume liability for the representations
and warranties made by the terminated Servicer in respect of the related
Mortgage Loans.
(c) In
the
event that the Master Servicer terminates the rights and obligations of any
Servicer under a Full Recourse Servicing Agreement pursuant to this Section,
the
Master Servicer shall use its reasonable best efforts to appoint a successor
Servicer that will service the related Mortgage Loans in accordance with the
provisions of the applicable Full Recourse Servicing Agreement. If the Master
Servicer is unable to appoint such a successor Servicer, the Master Servicer
shall modify the provisions of such Full Recourse Servicing Agreement as it
deems appropriate, in its reasonable best judgment and with the consent of
the
Depositor, and shall either appoint a successor Servicer or service such
Mortgage Loans itself (or through an Affiliate) as provided herein. In no event
shall the Master Servicer or any of its Affiliates be required to service any
Mortgage Loans pursuant to any Full Recourse Servicing Agreement in the absence
of such modification.
87
(d) In
no
event shall the Master Servicer be responsible for monitoring, supervising
or
overseeing the obligations of any subservicer under any subservicing
agreement.
Section
4.11. Master
Servicer Liable for Enforcement.
The
Master Servicer shall, subject to the provisions hereof, enforce the provisions
of each Servicing Agreement for the benefit of the
Certificateholders.
Section
4.12. No
Contractual Relationship Between Servicers and Master Servicer or
Depositor.
Any
Servicing Agreement (or subservicing agreement) that may be entered into and
any
other transactions or services relating to the Mortgage Loans involving a
Servicer shall be deemed to be between such Servicer and the other parties
thereto (and to the extent the Trustee is assigned rights thereunder or made
third-party beneficiaries thereof, the Trustee) and the Depositor and the Master
Servicer shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to such Servicing Agreement
(except as set forth in this Article IV) or subservicing agreement.
Section
4.13. Assumption
by Trustee.
(a) In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Event of Master Servicer Default under this
Agreement), the Trustee shall have the right to appoint a Successor Master
Servicer, who shall assume all of the Master Servicer’s rights, duties and
obligations hereunder. Until such Successor Master Servicer is appointed, the
Trustee shall assume all of the rights and obligations of the Master Servicer
hereunder (including the right to receive the Master Servicing Fee hereunder)
in
accordance with Section 4.17(a); provided,
however,
the
Trustee shall not be required to make any of the representations or warranties
in Section 3.01 hereof. The Trustee, its designee or any Successor Master
Servicer appointed by the Trustee shall be deemed to have assumed all of the
Master Servicer’s interest herein.
The
Trustee shall determine the Master Servicing Fee Rate applicable to a Successor
Master Servicer (other than the Trustee in such capacity), such Master Servicing
Fee Rate not to exceed the Maximum Master Servicing Fee Rate.
(b) In
the
event the Master Servicer is terminated, the Master Servicer shall,
(i) upon request of the Trustee but at the expense of such Master Servicer,
timely deliver to the assuming party all documents and records (including,
without limitation, computer tapes, disks and other electronic or magnetic
media, in each case in readable format) in its possession relating to each
Servicing Agreement and the related Mortgage Loans and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient assumption of its duties as Master Servicer to the
assuming party and (ii) make such reimbursements as are required under Section
4.08(x) hereof.
88
(c) The
Master Servicer shall be entitled to terminate the rights and obligations of
the
Seller under the applicable Servicing Agreement, to the extent provided therein,
in accordance with the terms and conditions of such Servicing Agreement and
this
Agreement. In such event, the applicable Servicer shall assume such rights
and
obligations to the extent provided in the applicable Servicing
Agreement.
Section
4.14. “Due-on-Sale”
Clauses; “Due-on-Encumbrance” Clauses, Assumption Agreements; Release of
Collateral.
(a) To
the
extent provided in the applicable Servicing Agreement, the Master Servicer
shall
enforce the obligation of the Servicers to approve a request from a Mortgager
for the sale, assignment or other transfer of a Mortgaged Property in accordance
with the applicable Servicing Agreement, provided
that
each such Servicer has received sixty (60) days’ prior written notice of the
proposed transfer, no event of default under the related loan documents has
occurred and is continuing, and the following criteria are satisfied, each
as
specified in the applicable Servicing Agreement:
(i) the
current borrower shall pay any and all fees and out of pocket costs incurred
in
connection with the transfer of the Mortgaged Property (including without
limitation counsel fees and disbursements and all recording fees, title
insurance premiums and mortgage and intangible taxes);
(ii) if
applicable, the proposed transferee or its principals shall have demonstrated
expertise in owning and operating properties similar in location, size and
operation to the Mortgaged Property, which expertise shall be determined by
the
Servicer, in the Servicer’s sole discretion;
(iii) the
proposed transferee and its principals shall, as of the date of such transfer,
have an aggregate net worth and liquidity acceptable to the Servicer, in the
Servicer’s sole discretion;
(iv) the
proposed transferee shall assume all of the obligations of the current borrower
under the related loan documents in all respects, including without limitation
by entering into an assumption agreement in form and substance satisfactory
to
the Servicer (in the Servicer’s sole discretion) and, if applicable, shall
execute in favor of the Trust a guaranty and an affidavit and indemnity of
borrower and guarantor regarding hazardous and toxic materials;
(v) no
event
of default under the related loan documents, or other event which, with the
giving of notice, passage of time or both would constitute an event of default
under the related loan documents, shall otherwise occur as a result of such
transfer, and the proposed transferee and its principals shall deliver (A)
all
organization documentation requested by the Servicer, which shall be
satisfactory to the Servicer (in the Servicer’s sole discretion) and (B) all
certificates, agreements and covenant required by the Servicer; and
89
(vi)
the
current borrower shall deliver, at its sole cost and expense, an endorsement
to
the existing title policy insuring the security instrument, as modified by
the
assumption agreement, as a valid first lien on the Mortgaged Property and naming
the proposed transferee as owner of the Mortgaged Property, which endorsement
shall insure that, as of the date of the recording of the assumption agreement
the Mortgaged Property shall not be subject to any additional exceptions or
liens other than those contained in the title policy issued in conjunction
with
the related loan documents.
(b) To
the
extent provided in the applicable Servicing Agreement, the Master Servicer
shall
cause the Servicers to enforce due-on-sale clauses with respect to the Mortgage
Loans in accordance with the applicable Servicing Agreement, to the extent
such
clauses are enforceable. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
(c) If
any
Mortgage Loan contains a provision in the nature of a “due-on-encumbrance”
clause, which by its terms: (i) provides that such Mortgage Loan shall (or
may
at the mortgagee’s option) become due and payable upon the creation of any lien
or other encumbrance on the related Mortgaged Property or (ii) requires the
consent of the related mortgagee to the creation of any such lien or other
encumbrance on the related Mortgaged Property, the Master Servicer shall (to
the
extent provided in the applicable Servicing Agreement) cause the related
Servicer, on behalf of the Trustee, to exercise (or decline to exercise) any
right it may have as the mortgagee of record with respect to such Mortgage
Loan
to (x) accelerate the payments thereon, or (y) withhold its consent to the
creation of any such lien or other encumbrance, in accordance with the
applicable Servicing Standard.
(d) The
Master Servicer or the related Servicer, as the case may be, shall be entitled
to approve a request from a Mortgagor for a partial release of the related
Mortgaged Property, the granting of an easement thereon in favor of another
Person, any alteration or demolition of the related Mortgaged Property or other
similar matters if it has determined, and certified to the Trustee, exercising
its good faith business judgment in the same manner as it would if it were
the
owner of the related Mortgage Loan, that the security for, and the timely and
full collectibility of, such Mortgage Loan would not be adversely affected
thereby. Any fee collected by the Master Servicer or the related Servicer for
processing such a request will be retained by the Master Servicer or such
Servicer as additional servicing compensation.
Section
4.15. Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
any Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will, if required under the applicable Servicing
Agreement, promptly notify the Trustee by a certification substantially in
the
form of Exhibit E hereto (which certification shall include a statement to
the effect that all amounts received in connection with such payment that are
required to be deposited in the Collection Account maintained by the Master
Servicer pursuant to Section 4.07 have been or will be so deposited) of a
Servicing Officer and shall request the Trustee to deliver to the applicable
Servicer the related Mortgage File. Upon receipt of such certification and
request, the Trustee shall promptly release the related Mortgage File to the
applicable Servicer and the Trustee shall have no further responsibility with
regard to such Mortgage File. Upon any such payment in full, each Servicer
is
authorized to give, as agent for the Trustee, as the mortgagee under the
Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or
assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as
the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed that
(unless otherwise expressly provided in the related Servicing Agreement) no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Collection Account
or
any Custodial Account.
90
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with the Servicing Standard and the applicable Servicing
Agreement, the Trustee shall execute such documents as shall be prepared and
furnished to the Trustee by a Servicer or the Master Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution
of
any such proceedings. The Trustee shall, upon the request of a Servicer or
the
Master Servicer, and delivery to the Trustee of a Request for Release signed
by
a Servicing Officer substantially in the form of Exhibit E, release the related
Mortgage File held in its possession or control to the Servicer or the Master
Servicer. Such Request for Release shall obligate the Servicer or the Master
Servicer to return the Mortgage File to the Trustee when the need therefor
by
the Servicer or the Master Servicer no longer exists unless the Mortgage Loan
shall be liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that hereinabove specified, the Request for Release shall
be
delivered by the Trustee to the Servicer or the Master Servicer.
Section
4.16. Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
(a) The
Master Servicer shall transmit and each Servicer (to the extent required by
the
related Servicing Agreement) shall transmit to the Trustee such documents and
instruments coming into the possession of the Master Servicer or such Servicer
from time to time as are required by the terms hereof, or in the case of the
Servicers, the applicable Servicing Agreement, to be delivered to the Trustee.
Any funds received by the Master Servicer or by a Servicer in respect of any
Mortgage Loan or which otherwise are collected by the Master Servicer or by
a
Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders, subject to the Master Servicer’s right to retain or withdraw
from the Collection Account the Master Servicing Fee and other amounts provided
in this Agreement, and to the right of each Servicer to retain its Servicing
Fee
and other amounts as provided in the applicable Servicing Agreement. The Master
Servicer shall, and shall (to the extent provided in the applicable Servicing
Agreement) cause each Servicer to, provide access to information and
documentation in its possession regarding the Mortgage Loans to the Trustee
and
the Depositor, their 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 shall 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.
91
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, shall be held by the Master Servicer for and on behalf of the Trustee
and the Certificateholders and shall be and remain the sole and exclusive
property of the Trust Fund; provided,
however,
that the
Master Servicer and each Servicer shall be entitled to deduct from any such
funds any amounts that are permitted to be withdrawn by the Master Servicer
pursuant to Section 4.08 hereof or by such Servicer under the applicable
Servicing Agreement.
(c) The
Master Servicer hereby acknowledges that concurrently with the execution of
this
Agreement, the Trustee shall have a security interest in the Mortgage Loans
and
in all Mortgage Files representing such Mortgage Loans and in all funds now
or
hereafter held by, or under the control of, the Master Servicer that are
collected by the Master Servicer in connection with the Mortgage Loans, whether
as scheduled installments of principal and interest or as full or partial
prepayments of principal or interest or as Liquidation Proceeds or Insurance
Proceeds or otherwise, and in all proceeds of the foregoing and proceeds of
proceeds (but excluding any fee or other amounts to which a Servicer is entitled
under its Servicing Agreement, or the Master Servicer or the Depositor is
entitled to hereunder); and the Master Servicer agrees that so long as the
Mortgage Loans are assigned to and held by the Trustee, all documents or
instruments constituting part of the Mortgage Files, and such funds relating
to
the Mortgage Loans which come into the possession or custody of, or which are
subject to the control of, the Master Servicer shall be held by the Master
Servicer for and on behalf of the Trustee as the Trustee’s agent and bailee for
purposes of perfecting the Trustee’s security interest therein as provided by
relevant Uniform Commercial Code or other laws.
(d) The
Master Servicer agrees that it shall not create, incur or subject any Mortgage
Loans, or any funds that are deposited in any Custodial Account or the
Collection Account, or any funds that otherwise are or may become due or payable
to the Trustee, to any claim, lien, security interest, judgment, levy, writ
of
attachment or other encumbrance, nor assert by legal action or otherwise any
claim or right of setoff against any Mortgage Loan or any funds collected on,
or
in connection with, a Mortgage Loan, except as otherwise expressly provided
herein.
Section
4.17. Removal
of Master Servicer; Resignation of Master Servicer; Term of
Servicing.
(a) If
any of
the following events (each, an “Event of Master Servicer Default”) shall occur
and be continuing:
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(i) Any
failure by the Master Servicer (x) to deposit to the Collection Account all
collections received by the Master Servicer from the Servicers within two
Business Days following the Business Day on which such amounts are deposited
by
the Master Servicer to its general account (which shall be within one Business
Day following receipt of such amount) and are determined by the Master Servicer
to relate to the Mortgage Loans or (y) to remit to the Trustee for deposit
in
the Certificate Distribution Account any amount required to be deposited therein
pursuant to Section 6.04(c) hereof by the related Master Servicer Remittance
Date; or
(ii) Failure
on the part of the Master Servicer to observe or perform any term, covenant
or
agreement in this Agreement (other than those covered by clause (i) above or
clause (v) below) or a failure to comply with the provisions of Accepted Master
Servicing Practices, which failure materially and adversely affects the rights
of the Holders of the Certificates, and which continues unremedied for 30 days
after the date on which written notice of such failure, requiring the same
to be
remedied, shall have been given to the Master Servicer by the Depositor, the
Trustee or the Certificateholders who, in the aggregate, hold Certificates
evidencing Voting Rights of 10% or more; or
(iii) Any
proceeding shall be instituted against the Master Servicer seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or any of
its
Debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for
it
or for any substantial part of its property, or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur;
or
(iv) The
commencement by the Master Servicer of a voluntary case or proceeding under
any
applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief
in
respect of the Master Servicer in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or state law,
or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Master Servicer or of any substantial
part of its property, or the making by it of an assignment for the benefit
of
creditors, or the admission by it in writing of its inability to pay its Debts
generally as they become due, or the taking of corporate action by the Master
Servicer in furtherance of any such action; or
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(v) The
Master Servicer shall fail to deliver a report expressly required by this
Agreement, and the continuance of such failure for a period of three Business
Days after the date upon which written notice of such failure shall have been
given to the Master Servicer by the Depositor or the Trustee (except that such
three Business Day period shall be deemed not to run as to any portion of such
report during such time as the Master Servicer’s failure to provide such
information is for cause or inability beyond its control and the Master Servicer
provides the Trustee and the Depositor with an Officer’s Certificate of the
Master Servicer to such effect);
then
the
Trustee at the written direction of the Required Certificateholders shall,
in
each case by delivery to the Master Servicer of a written notice specifying
the
occurrence of any of the foregoing events terminate the responsibilities of
the
Master Servicer hereunder, without demand, protest or further notice of any
kind, all of which are hereby waived by the Master Servicer; provided
that, in
the event any of the events described in subsections (i)(y), (iii) or (iv)
shall
have occurred, termination of the duties and responsibilities of the Master
Servicer and the Trustee’s assumption all of the Master Servicer’s rights,
duties and obligations hereunder shall automatically occur, without demand,
protest, or further notice of any kind, all of which are expressly waived by
the
Master Servicer; provided
that in
the case of a proceeding described in subsection (iii) brought by a third
party and not consented to by the Master Servicer, an Event of Master Servicer
Default shall not be deemed to have occurred until the earliest to occur of
(A)
the failure of the relevant court to grant the Master Servicer’s motion to
dismiss such proceeding within 90 days of the filing of such motion, (B) the
denial of the Master Servicer’s motion to dismiss such proceeding by the
relevant court, (C) the failure of the Master Servicer to file such a motion
within 30 days of the notice of the proceeding and (D) the subsequent withdrawal
by the Master Servicer of its motion to dismiss such proceeding.
If
an
Event of Master Servicer Default occurs and is continuing and if a Responsible
Officer of the Trustee has actual knowledge or has received notice thereof,
the
Trustee shall give prompt written notice of thereof to the Depositor, the Master
Servicer, the Rating Agencies, the Swap Counterparty and each
Certificateholder.
(b) The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it, except with the consent of the Depositor and the Trustee or upon
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with
any
other activities carried on by it, the other activities of the Master Servicer
so causing such a conflict being of a type and nature carried on by the Master
Servicer at the date of this Agreement. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
to the effect that such duties are not so permissible (the cost of which shall
be borne by the Master Servicer) to such effect which shall be delivered to
the
Trustee, the Depositor, the Rating Agencies and the
Certificateholders.
(c) Except
as
may be required by law, no resignation of the Master Servicer shall become
effective until a Successor Master Servicer shall have assumed all of the Master
Servicer’s responsibilities and obligations hereunder.
(d) If
the
Master Servicer is removed or resigns and the Trustee does not appoint a
Successor Master Servicer in accordance with Section 4.13 hereof, then the
Trustee shall become the Successor Master Servicer. The Trustee shall be
entitled to reimbursement from the predecessor Master Servicer for the costs
and
expenses of the Trustee related to a termination of the Master Servicer, the
appointment of a successor Master Servicer or the transfer and assumption of
servicing by the Trustee, as Successor Master Servicer, each due to an Event
of
Master Servicer Default. To the extent that such costs and expenses of the
Trustee are not fully and timely reimbursed by the predecessor Master Servicer,
the Trustee shall be entitled to reimbursement of such costs and expenses from
the Collection Account in accordance with Section 4.08(x).
94
(e) Any
collections received by the Master Servicer after removal or resignation shall
be endorsed by it and remitted directly and immediately to the Successor Master
Servicer. The Master Servicer shall be entitled to receive the Master Servicing
Fee through the day on which it is terminated as Master Servicer (which may
be
pro rated for a partial month).
To
the
extent that the Master Servicer, at the time of its removal or resignation,
has
theretofore expended any amounts as Advances with respect to any Mortgage Loan,
which Advances remain Outstanding Advances as of such date, the Master Servicer
shall thereafter be entitled to receive from the Successor Master Servicer,
monthly, such information as may be generated by the Successor Master Servicer
as may be reasonably necessary to enable the Master Servicer to monitor the
recovery of, and collection efforts undertaken with respect to, such Outstanding
Advances, which information will include details of collection activities,
payment records and trial balances. To the extent that the Successor Master
Servicer receives any amounts which relate to reimbursement for Outstanding
Advances made by the prior Master Servicer, such amounts shall be remitted
to
the prior Master Servicer on the related Distribution Date. To the extent that
the Master Servicer, based upon the information supplied by the Successor Master
Servicer, believes that any discrepancies exist between actual Outstanding
Advances received by the Successor Master Servicer and the amounts forwarded
to
the Master Servicer as recovered Outstanding Advances, the Master Servicer
and
the Successor Master Servicer shall attempt in good faith to reconcile such
discrepancies.
(f) The
Master Servicer agrees to cooperate reasonably with the Successor Master
Servicer in effecting the termination of the Master Servicer’s servicing
responsibilities and rights hereunder and shall promptly provide to the
Successor Master Servicer all documents and records reasonably requested by
it
to enable it to assume the Master Servicer’s functions hereunder and shall
promptly also transfer to the Successor Master Servicer all amounts which then
have been or should have been deposited in the Collection Account, or which
are
thereafter received with respect to the Mortgage Loans. The Successor Master
Servicer shall not be held liable for any acts or omissions of the prior Master
Servicer or by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of
the
Master Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer. The Master Servicer shall reimburse
the
Successor Master Servicer for its reasonable costs and expenses associated
with
the transfer of the master servicing following resignation of the Master
Servicer or termination of the Master Servicer pursuant to this Section
4.17.
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Section
4.18. Cross-Collateralized
Mortgage Loans.
The
Master Servicer shall administer any Cross-Collateralized Mortgage Loans that
are cross-collateralized with each other in accordance with this Agreement,
as a
single Mortgage Loan.
All
amounts collected in respect of any related Cross-Collateralized Mortgage Loans
shall be applied between or among such Mortgage Loans in accordance with the
express provisions of the related loan documents or, in the absence of such
express provisions, on a pro
rata
basis in
accordance with the respective amounts then due as to each of such Mortgage
Loans.
Notwithstanding
anything to the contrary herein, the Master Servicer shall not waive any right
that it has, or grant any consent it is otherwise entitled to withhold, under
any related due-on-sale clause governing the transfer of any Mortgaged Property
that secures Cross-Collateralized Mortgage Loans unless all of the Mortgaged
Properties securing such Cross-Collateralized Mortgage Loans are transferred
simultaneously to the same transferee.
Section
4.19. Standard
Hazard and Flood Insurance Policies.
For
each
Mortgage Loan, the Master Servicer shall enforce any obligation of the Servicer
under the related Servicing Agreement to maintain or cause to be maintained
standard fire and casualty insurance and, where applicable, flood insurance,
all
in accordance with the provisions of the related Servicing Agreement. It is
understood and agreed that such insurance shall be with insurers meeting the
eligibility requirements set forth in the applicable Servicing Agreement and
that no earthquake or other additional insurance is to be required of any
Mortgagor or to be maintained on any REO Property, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
Pursuant
to Section 4.07, any amounts collected by the Master Servicer, or remitted
to
the Master Servicer by any Servicer, under any insurance policies maintained
pursuant to this Section 4.19 (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or
released to the Mortgagor in accordance with the applicable Servicing Agreement)
shall be deposited into the Collection Account, subject to withdrawal pursuant
to Section 4.08. Any cost incurred by the Master Servicer or any Servicer in
maintaining any such insurance if the Mortgagor defaults in its obligation
to do
so shall be added to the amount owing under the Mortgage Loan where the terms
of
the Mortgage Loan so permit; provided,
however,
that the
addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders and shall be
recoverable by the Master Servicer or such Servicer pursuant to Section
4.08.
Section
4.20. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall (subject to Section 4.01 and to the extent provided in
the
applicable Servicing Agreement) cause the related Servicer to prepare and
present on behalf of the Trustee and the Certificateholders all claims under
the
Insurance Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured’s claim and compliance with any
applicable requirements of FHA or VA) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or disbursed
to a Servicer and remitted to the Master Servicer) in respect of such policies,
bonds or contracts shall be promptly deposited in the Collection Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to
the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
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Section
4.21. Maintenance
of the Primary Mortgage Insurance Policies.
(a) Subject
to Section 4.01, the Master Servicer shall not take, or knowingly permit any
Servicer (to the extent such action is prohibited under the applicable Servicing
Agreement) to take, any action that would result in non-coverage under any
applicable Primary Mortgage Insurance Policy of any loss which, but for the
actions of such Master Servicer or Servicer, would have been covered thereunder.
The Master Servicer shall, subject to Section 4.01, use its reasonable best
efforts to cause each Servicer (to the extent required under the related
Servicing Agreement) to keep in force and effect (to the extent that the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
The Master Servicer shall not, and shall not knowingly permit any Servicer
(to
the extent required under the related Servicing Agreement) to, cancel or refuse
to renew any such Primary Mortgage Insurance Policy that is in effect at the
date of the initial issuance of the Mortgage Note and is required to be kept
in
force hereunder except in accordance with the provisions of this Agreement
and
the related Servicing Agreement, as applicable.
(b) The
Master Servicer agrees, subject to Section 4.01, to present, or to cause each
Servicer (to the extent required under the related Servicing Agreement) to
present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard,
to
take such reasonable action as shall be necessary to permit recovery under
any
Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to Section 4.07, any amounts collected by the Master Servicer or
remitted to the Master Servicer by any Servicer under any Primary Mortgage
Insurance Policies shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 4.08.
Section
4.22. Trustee
To Retain Possession of Certain Insurance Policies and Documents.
The
Trustee shall retain possession and custody of the originals of the Primary
Mortgage Insurance Policies or certificates of insurance, if applicable, and
any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts distributable in respect
of
the Mortgage Notes have been distributed in full and the Master Servicer
otherwise has fulfilled its obligations under this Agreement, the Trustee shall
also retain possession and custody of each Mortgage File in accordance with
and
subject to the terms and conditions of this Agreement. The Master Servicer
shall
promptly deliver or cause to be delivered to the Trustee upon the execution
or
receipt thereof the originals of the Primary Mortgage Insurance Policies and
any
certificates of renewal thereof, and such other documents or instruments that
constitute portions of the Mortgage File that come into the possession of the
Master Servicer from time to time.
97
Section
4.23. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall, subject to Section 4.01, cause each Servicer (to the
extent required under the related Servicing Agreement) to use its reasonable
best efforts to foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments, all in accordance with the
applicable Servicing Agreement.
Section
4.24. Compensation
to the Master Servicer.
The
Master Servicer shall be entitled either (a) to pay itself the Master Servicing
Fee in respect of remittances from the Servicers prior to the deposit of such
payment in the Collection Account or (b) to withdraw from the Collection
Account, subject to Section 4.08, the Master Servicing Fee. Servicing
compensation in the form of assumption fees, if any, late payment charges,
as
collected, if any, or otherwise (but not including any prepayment premium or
penalty or yield maintenance payment) shall be retained by the Master Servicer
(or the applicable Servicer) and shall not be deposited in the Collection
Account. In addition, the Master Servicer will be entitled to retain any Net
Prepayment Interest Excess. If the Master Servicer does not retain or withdraw
the Master Servicing Fee from the Collection Account as provided herein, the
Master Servicer shall be entitled to direct the Trustee to pay the Master
Servicing Fee to the Master Servicer by withdrawal from the Certificate
Distribution Account to the extent that payments have been received with respect
to the applicable Mortgage Loan. The Master Servicer shall be required to pay
all expenses incurred by it in connection with its activities hereunder and
shall not be entitled to reimbursement therefor except as provided in this
Agreement. Pursuant to Section 4.07 all income and gain realized from any
investment of funds in the Collection Account shall be for the benefit of the
Master Servicer as additional compensation.
The
Master Servicing Fee for each Distribution Date shall be reduced as provided
in
Section 6.10.
Section
4.25. REO
Property.
(a) In
the
event the Trustee acquires ownership of any REO Property in respect of any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the related Certificateholders. The Master
Servicer shall use its reasonable best efforts, subject to Section 4.01 and
to
the extent provided in the applicable Servicing Agreement, to cause the
applicable Servicer to sell any REO Property as expeditiously as possible and
in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall, subject to Section 4.01,
cause the applicable Servicer to protect and conserve such REO Property in
the
manner and to the extent required by the applicable Servicing
Agreement.
Each
Servicing Agreement shall include provisions to the effect that (i) the Servicer
shall sell each REO Property in any event within three years after title has
been taken to such REO Property and (ii) the Servicer shall not Directly Operate
any REO Property, but shall employ an Independent Contractor to operate REO
Property.
98
(b) The
Master Servicer shall, subject to Section 4.01 and to the extent required by
the
related Servicing Agreement, cause the Servicer to deposit all funds collected
and received in connection with the operation of any REO Property in the
Collection Account.
(c) The
Master Servicer and the applicable Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related Outstanding
Advances and other unreimbursed advances from Liquidation Proceeds received
in
connection with the final disposition of such REO Property; provided
that any
such Outstanding Advances may be reimbursed or paid, as the case may be, prior
to final disposition, out of any net rental income or other net amounts derived
from such REO Property.
(d) The
Liquidation Proceeds from the final disposition of the REO Property, net of
any
payment to the Master Servicer and the applicable Servicer as provided above
shall be deposited in the Collection Account on or prior to the Determination
Date in the month following receipt thereof from the applicable Servicer and
be
remitted by wire transfer in immediately available funds to the Trustee for
deposit into the Certificate Distribution Account on the next succeeding Master
Servicer Remittance Date.
Section
4.26. Delinquency
Advances and Servicing Advances.
(a) Not
later
than 12:00 noon New York City time on each Master Servicer Remittance Date,
the
Master Servicer, except as otherwise stated herein, shall advance funds (each
such advance, a “Delinquency Advance”) to the Certificate Distribution Account
in the amount of any Monthly Payment that is due during the related Due Period
and not received by the Master Servicer from the related Servicer as of the
related Determination Date; provided,
however,
that the
Master Servicer will not be required to make any such Delinquency Advance (i)
if
the related Mortgage Loan is a Non-Servicer Obligated Mortgage Loan, (ii) with
respect to any such amount representing a Civil Relief Act Reduction, or (iii)
if the Master Servicer determines in reasonable good faith that such Delinquency
Advance would be a Non-Recoverable Advance. Such determination by the Master
Servicer will be evidenced by a certificate signed by a Servicing Officer
delivered to the Trustee no later than such Master Servicer Remittance Date
for
the related Distribution Date. Each Delinquency Advance shall increase the
Outstanding Advances with respect to the related Mortgage Loan. The Master
Servicer shall be permitted to fund Delinquency Advances from its own funds,
and
from amounts then on deposit in the Collection Account in excess of the Total
Distribution Amount for the related Master Servicer Remittance
Date.
(b) The
Master Servicer may recover Delinquency Advances (i) from the Collection Account
out of collections on the Mortgage Loan whose delinquency gave rise to such
Delinquency Advance subsequent to the related Due Period, from Liquidation
Proceeds and/or Insurance Proceeds recovered on account of such Mortgage Loan
to
the extent of the amount of such Delinquency Advance prior to, or after, the
deposit of such Liquidation Proceeds and/or Insurance Proceeds in the Collection
Account and (ii) from the Collection Account generally, if such Delinquency
Advance has been determined to be a Non-Recoverable Advance.
99
(c) The
Master Servicer, to the extent the Master Servicer becomes the successor to
a
Servicer pursuant to Section 4.10 and to the extent required by the related
Servicing Agreement, will advance all “out-of-pocket” costs and expenses
incurred in the performance of its servicing obligations with respect to
defaulted Mortgage Loans, including, but not limited to, the cost of (i)
Preservation Expenses, (ii) any enforcement or judicial proceedings, including
foreclosures, and any reasonable legal expenses in connection with the assertion
by a Mortgagor of any claim or defense that the Mortgagor may have had against
the originator in connection with the sale, financing or construction of such
Mortgagor’s home and which the Mortgagor asserts against the Master Servicer and
(iii) the management and liquidation of REO Property, but shall only pay such
costs and expenses to the extent the Master Servicer reasonably believes such
costs and expenses will be recovered from the related Mortgage Loan and will
increase Net Liquidation Proceeds on the related Mortgage Loan. Each such
expenditure, if customary and reasonable, and exclusive of overhead, will
constitute a “Servicing Advance.” The Master Servicer may recover a Servicing
Advance from the Mortgagor to the extent permitted by the related Mortgage
Loan,
from the Collection Account out of collections on the related Mortgage Loan,
from Liquidation Proceeds realized upon the liquidation of the related Mortgage
Loan, from Insurance Proceeds collected with respect to the related Mortgage
Loan prior to, or after, the deposit of such Liquidation Proceeds and/or
Insurance Proceeds in the Collection Account or, if such Liquidation Proceeds
and Insurance Proceeds are insufficient to reimburse the Master Servicer for
such Servicing Advance, from the Collection Account.
Section
4.27. Master
Servicer Reports.
To
the
extent the Master Servicer receives timely information from each Servicer not
later than 2:00 p.m. New York City time two Business Days prior to each
Distribution Date, the Master Servicer shall deliver or cause to be delivered
to
the Trustee, the Seller and the Depositor the related Master Servicer’s Monthly
Report which shall contain (i) a summary report of Mortgage Loan payment
activity for such month, (ii) delinquency summary reports for Mortgage Loans
with respect to which scheduled payments due in such month were not made, (iii)
an itemization by category of all amounts to be paid on the Distribution Date,
(iv) the aggregate principal balance of all Foreclosure Restricted Loans that
are subject to foreclosure proceedings in such month (to the extent such
information is required to be reported and is reported by the Servicer to the
Master Servicer) and (v) such other information as is necessary for the Trustee
to report items in Sections 6.08(a) and (b); provided,
however,
that
the Master Servicer shall provide the information detailed in clauses (iii),
(iv) and (v) above with respect to the assets of the Trust Fund other than
the
Mortgage Loans only to the extent that it receives such information in a timely
manner from the parties that are required to provide such information to the
Master Servicer. In the event the Master Servicer does not receive timely
information from each Servicer, the Master Servicer shall deliver or cause
to be
delivered the Master Servicer’s Monthly Report to the Trustee within one
Business Day following the Master Servicer’s receipt of the necessary
information.
Section
4.28. Annual
Statements as to Compliance; Annual Assessments of Compliance.
(a) The
Master Servicer shall deliver or otherwise make available (and the Master
Servicer shall cause any Additional Servicer engaged by it to deliver) to the
Depositor and the Trustee on or before March 10 (with a 5 calendar day cure
period) of each year, commencing in March 2008, an Officer’s Certificate
stating, as to the signer thereof, that (i) a review of such party’s activities
during the preceding calendar year or portion thereof and of such party’s
performance under this Agreement, or such other applicable agreement in the
case
of an Additional Servicer, has been made under such officer’s supervision and
(ii) to the best of such officer’s knowledge, based on such review, such party
has fulfilled all of its obligations under this Agreement, or such other
applicable agreement in the case of an Additional Servicer, in all material
respects throughout such year or portion thereof, or, if there has been a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status thereof. Promptly
after receipt of each such Officer’s Certificate, the Depositor shall review
such Officer’s Certificate and, if applicable, consult with each such party, as
applicable, as to the nature of any failures by such party, in the fulfillment
of any of such party’s obligations hereunder, or in the case of an Additional
Servicer, under such other applicable agreement.
100
The
Master Servicer shall enforce any obligation of a Servicer (and the applicable
Servicing Agreement will provide that each Servicer shall enforce any
obligations of an Additional Servicer engaged by such Servicer), to the extent
set forth in the related Servicing Agreement (or, in the case of an Additional
Servicer, such applicable agreement), to deliver to the Master Servicer an
annual statement of compliance as may be required pursuant to the related
Servicing Agreement (or, in the case of an Additional Servicer, such applicable
agreement). The Master Servicer shall include such annual statements of
compliance with its own annual statement of compliance to be submitted to the
Depositor and the Trustee pursuant to this Section.
(b) On
or
before March 10 (with a 5 calendar day cure period) of each year that a Form
10-K is required to be filed in respect of the Trust Fund, commencing in March
2008, the Master Servicer and the Trustee, each at its own expense, shall
furnish, and each such party shall cause any Servicing Function Participant
engaged by it to furnish, each at its own expense, to the Depositor and to
the
Trustee (in the case of the Master Servicer) or the Master Servicer (in the
case
of the Trustee), a report on an assessment of compliance with the Relevant
Servicing Criteria that contains (i) a statement by such party of its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(ii) a statement that such party used the Servicing Criteria to assess
compliance with the Relevant Servicing Criteria, (iii) such party’s assessment
of compliance with the Relevant Servicing Criteria as of and for the fiscal
year
covered by the Form 10-K required to be filed pursuant to Section 4.31(c),
including, if there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof and (iv) a statement that a registered public accounting
firm
has issued an attestation report on such party’s assessment of compliance with
the Relevant Servicing Criteria as of and for such period.
No
later
than the end of each fiscal year for the Trust Fund for which a Form 10-K is
required to be filed, the Trustee shall forward to the Master Servicer the
name
of each Servicing Function Participant, if any, engaged by it and a description
of what Relevant Servicing Criteria will be addressed in the report on
assessment of compliance prepared by each such Servicing Function Participant.
When the Trustee submits its assessment to the Master Servicer pursuant to
this
Section, the Trustee shall also at such time include the assessment (and
attestation pursuant to Section 4.29) of each Servicing Function Participant,
if
any, engaged by it.
101
Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Trustee and any Servicing Function Participant engaged by such
parties as to the nature of any material instance of noncompliance with the
Relevant Servicing Criteria by each such party and (ii) the Master Servicer
shall confirm that the assessments, taken as a whole, address all of the
Servicing Criteria and taken individually address the Relevant Servicing
Criteria for each party as set forth on Exhibit P-1 hereto and on any similar
exhibit set forth in a Servicing Agreement in respect of the applicable Servicer
and notify the Depositor of any exceptions.
The
Master Servicer shall enforce any obligation of a Servicer (and the applicable
Servicing Agreement will provide that each Servicer shall enforce any
obligations of an Additional Servicer or Servicing Function Participant engaged
by such Servicer), to the extent set forth in the related Servicing Agreement
(or, in the case of an Additional Servicer or Servicing Function Participant,
such applicable agreement), to deliver to the Master Servicer an annual report
on assessment of compliance as may be required pursuant to the related Servicing
Agreement (or, in the case of an Additional Servicer or Servicing Function
Participant, such applicable agreement). The Master Servicer shall include
such
annual report on assessment of compliance with its own assessment of compliance
to be submitted to the Depositor and the Trustee pursuant to this
Section.
(c) Unless
otherwise made available on the Master Servicer’s internet website, copies of
such statements shall be provided to any Certificateholder upon request, by
the
Master Servicer or by the Trustee at the Master Servicer’s expense if the Master
Servicer failed to provide such copies (unless (i) the Master Servicer shall
have failed to provide the Trustee with such statement or (ii) the Trustee
shall
be unaware of the Master Servicer’s failure to provide such
statement).
Section
4.29. Annual
Independent Public Accountants’ Servicing Statements; Financial
Statements.
On
or
before March 10 (with a 5 calendar day cure period) of each year that a Form
10-K is required to be filed in respect of the Trust Fund, commencing in March
2008, the Master Servicer and the Trustee, each at its own expense, shall cause,
and each such party shall cause each Servicing Function Participant engaged
by
it to cause, each at its own expense, a registered public accounting firm (which
may also render other services to the Master Servicer, the Trustee, or such
other Servicing Function Participants, as the case may be) that is a member
of
the American Institute of Certified Public Accountants to furnish a report
to
the Depositor and the Trustee (and, in the case of any other Servicing Function
Participant, to the Master Servicer), to the effect that (i) it has obtained
a
representation regarding certain matters from the management of such party,
which includes an assertion that such party has complied with the Relevant
Servicing Criteria and (ii) on the basis of an examination conducted by such
firm in accordance with standards for attestation engagements issued or adopted
by the PCAOB, it is expressing an opinion as to whether such party’s compliance
with the Relevant Servicing Criteria was fairly stated in all material respects,
or it cannot express an overall opinion regarding such party’s assessment of
compliance with the Relevant Servicing Criteria. In the event that an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must
be
available for general use and not contain restricted use language.
102
Promptly
after receipt of such report from the Master Servicer, the Trustee or any
Servicing Function Participant engaged by such parties, (i) the Depositor shall
review the report and, if applicable, consult with or cause the Master Servicer
to consult with such parties as to the nature of any defaults by such parties
in
the fulfillment of any of each such party’s obligations hereunder or under any
other applicable agreement and (ii) the Master Servicer shall confirm that
each
assessment submitted pursuant to Section 4.28(b) is coupled with an attestation
meeting the requirements of this Section and shall notify the Depositor of
any
exceptions.
The
Master Servicer shall enforce any obligation of a Servicer (and the applicable
Servicing Agreement will provide that each Servicer shall enforce any
obligations of an Additional Servicer engaged by such Servicer), to the extent
set forth in the related Servicing Agreement (or, in the case of an Additional
Servicer, such applicable agreement), to deliver to the Master Servicer an
attestation as may be required pursuant to the related Servicing Agreement
(or,
in the case of an Additional Servicer, such applicable agreement). The Master
Servicer shall include such attestation with its own attestation to be submitted
to the Depositor and the Trustee pursuant to this Section.
Section
4.30. Merger
or Consolidation.
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to
the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided,
however,
that the
successor to the Master Servicer shall be a Person that shall be qualified
and
approved to service mortgage loans for Xxxxxx Xxx, Xxxxxxx Mac, FHA and VA
and
shall have a net worth of not less than $15,000,000.
Section
4.31. Reports
filed with the Commission.
(a) The
Depositor shall prepare and file or cause to be prepared and filed the initial
current report on Form 8-K. Thereafter, within four Business Days after the
occurrence of an event requiring disclosure in a current report on Form 8-K
(each such event, a “Reportable Event”), and if requested by the Depositor, the
Master Servicer shall prepare, sign on behalf of the Depositor and file with
the
Commission any Form 8-K, as required by the Exchange Act. Any disclosure or
information related to a Reportable Event or that is otherwise required to
be
included on Form 8-K (“Form 8-K Disclosure Information”) shall be determined and
prepared by and at the direction of the Depositor pursuant to the this Section
4.31(a) and the Master Servicer shall 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 this Section 4.31(a).
As
set
forth on Exhibit P-2 hereto,
for so long as the Trust Fund is subject to the Exchange Act reporting
requirements, no later than 12:00 noon New York City time on the second Business
Day after the occurrence of a Reportable Event (i) the parties to the Bayview
Financial Mortgage Pass-Through Trust 2007-B Mortgage Pass-Through Certificates,
Series 2007-B transaction shall be required to provide to the Master Servicer
and the Depositor, to the extent known by a responsible officer thereof, in
form
compatible with the Commission’s Electronic Data Gathering and Retrieval System
(“XXXXX”), or in such other form as otherwise agreed upon by the Master Servicer
and such party, the form and substance of any Form 8-K Disclosure Information,
if applicable, together with an Additional Disclosure Notification in the form
of Exhibit P-5 hereto (an “Additional Disclosure Notification”), and (ii) the
Depositor shall approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Form 8-K Disclosure Information in writing to
the
Master Servicer no later than the Business Day prior to the date specified
below
for the execution and filing of such Form 8-K. The Depositor shall be
responsible for any reasonable fees and expenses assessed or incurred by the
Master Servicer in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
103
No
later
than 12:00 noon New York City time on the fourth Business Day after the
Reportable Event, a duly authorized representative of the Master Servicer shall
sign and file with the Commission the 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 Master Servicer
shall follow the procedures set forth in Section 4.31(d). Promptly (but no
later
than one Business Day) after filing with the Commission, the Master Servicer
shall make available on its internet website (located at xxx.xxxxxxx.xxx) a
final executed copy of each Form 8-K filed by the Master Servicer. The signing
party at the Master Servicer can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at (000) 000-0000. The
parties to this Agreement acknowledge that the performance by the Master
Servicer of its duties under this Section 4.31(a) related to the timely
preparation, execution 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 4.31. The Master Servicer shall have no liability for any
loss, expense, damage or claim arising out of or with respect to any failure
to
properly prepare, execute and/or timely file such Form 8-K, where such failure
results from the Master Servicer’s inability or failure to receive, on a timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file such Form 8-K, not resulting from its own negligence,
bad
faith or willful misconduct.
(b) Within
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Master Servicer shall prepare, sign on behalf of the
Depositor and file with the Commission any distribution report on Form 10-D
required by the Exchange Act, in form and substance as required by the Exchange
Act. The Master Servicer shall file each Form 10-D with a copy of the related
monthly statement attached thereto. Any disclosure in addition to the monthly
statement that is required to be included on Form 10-D (“Additional Form 10-D
Disclosure”) shall be determined and prepared by and at the direction of the
Depositor pursuant to this Section 4.31(b) and the Master Servicer shall have
no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, except as set forth in this Section
4.31(b).
As
set
forth on Exhibit P-3 hereto, within 5 calendar days after the related
Distribution Date, (i) the parties to the Bayview Financial Mortgage
Pass-Through Trust 2007-B Mortgage Pass-Through Certificates, Series 2007-B
transaction shall be required to provide to the Master Servicer and the
Depositor, to the extent known by a responsible officer thereof, in
XXXXX-compatible form, or in such other form as otherwise agreed upon by the
Master Servicer and such party, the form and substance of any Additional Form
10-D Disclosure, if applicable, together with an Additional Disclosure
Notification and (ii) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Additional Form 10-D
Disclosure on Form 10-D in writing to the Master Servicer no later than two
Business Days prior to the date specified below for the execution and filing
of
such Form 10-D. The Depositor shall be responsible for any reasonable fees
and
expenses assessed or incurred by the Master Servicer in connection with
including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
Section 4.31(b).
104
No
later
than the 15th
calendar
day after the related Distribution Date, a duly-authorized representative of
the
Master Servicer shall sign and file the 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 Master
Servicer shall follow the procedures set forth in Section 4.31(d). Promptly
(but
no later than one Business Day) after filing with the Commission, the Master
Servicer shall make available on its internet website (located at
xxx.xxxxxxx.xxx) a final executed copy of each Form 10-D filed by the Master
Servicer. The signing party at the Master Servicer can be contacted by e-mail
at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at (000) 000-0000. 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.” At the date of filing of each annual
report on Form 10-D with respect to the Trust Fund, the Depositor shall be
deemed to represent to the Master Servicer that as of such date the Depositor
has filed all such required reports during the preceding 12 months and that
it
has been subject to such filing requirement for the past 90 days. The Depositor
shall notify the Master Servicer in writing, no later than the fifth calendar
day after the related Distribution Date with respect to the filing of a report
on Form 10-D, if the answer to the questions referenced in the first sentence
of
this paragraph should be “no.” Absent such notification, the Master Servicer
shall be entitled to rely on the above representations in preparing, executing
and/or filing any such report. Each party to this Agreement acknowledges that
the performance by the Master Servicer of its duties under this Section 4.31(b)
related to the timely preparation, execution and filing of Form 10-D is
contingent upon such parties strictly observing all applicable deadlines in
the
performance of their duties under this Section 4.31(b). The Master Servicer
shall have no liability for any loss, expense, damage or claim arising out
of or
with respect to any failure to properly prepare, execute and/or timely file
such
Form 10-D, where such failure results from the Master Servicer’s inability or
failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
(c) Within
90
days (including the 90th
day)
after the end of each fiscal year of the Trust Fund or such earlier date as
may
be required by the Exchange Act (the “10-K Filing Deadline”) (it being
understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2008, the Master Servicer shall prepare and file
on
behalf of the Depositor an annual report on 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 Master
Servicer within the applicable time frames set forth in this Agreement and
the
related Servicing Agreement: (i) an annual compliance statement for each
Servicer, each Additional Servicer, the Master Servicer and any Servicing
Function Participant engaged by any such party (each, a “Reporting Servicer”) as
described under Section 4.28(a), (ii)(A) the annual reports on assessment of
compliance with servicing criteria for each Reporting Servicer, as provided
in
Section 4.28(b) and (B) if any Reporting Servicer’s report on assessment of
compliance with servicing criteria described in Section 4.28(b) identifies
any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any Reporting Servicer’s report on assessment of compliance
with servicing criteria described in Section 4.28(a) is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and
an
explanation of why such report is not included, (iii)(A) the registered public
accounting firm attestation report for each Reporting Servicer, as provided
in
Section 4.29 and (B) if any registered public accounting firm attestation report
described in Section 4.29 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 of
why
such report is not included and (iv) a certification pursuant to Section 302
of
the Xxxxxxxx-Xxxxx Act of 2002 (a “Xxxxxxxx-Xxxxx Certification”) provided by or
on behalf of the Depositor. Any disclosure or information in addition to the
disclosure or information specified in items (i) through (iv) above that is
required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall
be determined and prepared by and at the direction of the Depositor and the
Master Servicer shall have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, except as set forth
in
this Section 4.31(c).
105
As
set
forth on Exhibit P-4 hereto, no later than March 15 of each year that the Trust
Fund is subject to Exchange Act reporting requirements, commencing in 2008,
(i)
the parties to the Bayview Financial Mortgage Pass-Through Trust 2007-B Mortgage
Pass-Through Certificates, Series 2007-B transaction shall be required to
provide to the Master Servicer and the Depositor, to the extent known by a
responsible officer thereof, in XXXXX-compatible form, or in such other form
as
otherwise agreed upon by the Master Servicer and such party, the form and
substance of any Additional Form 10-K Disclosure, if applicable, together with
an Additional Disclosure Notification. The Depositor shall 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 in writing to the Master Servicer
no later than the Business Day prior to the date specified below for the
execution and filing of such Form 10-K. The Depositor shall be responsible
for
any reasonable fees and expenses assessed or incurred by the Master Servicer
in
connection with including any Additional Form 10-K Disclosure on Form 10-K
pursuant to this Section 4.31(c).
No
later
than 12:00 noon New York City time on the fourth Business Day prior to the
10-K
Filing Deadline provided in this Section 4.31(c), the Depositor shall sign
the
Form 10-K and the Xxxxxxxx-Xxxxx Certification and return to the Master Servicer
an executed, electronic copy of such Form 10-K and such Xxxxxxxx-Xxxxx
Certification (with original, executed copies to follow by overnight mail).
After receipt from the Depositor of the executed, electronic copies but no
later
than the filing deadline provided in this Section 4.31(c), the Master Servicer
shall file the Form 10-K. The Master Servicer shall forward an electronic copy
of the SEC’s confirmation of filing of such Form 10-K to the Depositor. If a
Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be
amended, the Master Servicer shall follow the procedures set forth in Section
4.31(d). Promptly (but no later than one Business Day) after filing with the
Commission, the Master Servicer shall make available on its internet website
(located at xxx.xxxxxxx.xxx) a final executed copy of each Form 10-K filed
by
the Master Servicer. 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.” At the
date of filing of each annual report on From 10-K with respect to the Trust
Fund, the Depositor shall be deemed to represent to the Master Servicer that
as
of such date the Depositor has filed all such required reports during the
preceding 12 months and that it has been subject to such filing requirement
for
the past 90 days. The Depositor shall notify the Master Servicer in writing,
no
later than March 15th with respect to the filing of a report on Form 10-K,
if
the answer to the questions referenced in the first sentence of this paragraph
should be “no.” Absent such notification, the Master Servicer shall be entitled
to rely on the above representations in preparing, executing and/or filing
any
such report. The parties to this Agreement acknowledge that the performance
by
the Master Servicer of its duties under this Section 4.31(c) related to the
timely preparation and filing of Form 10-K is contingent upon such parties
(and
any Additional Servicer or Servicing Function Participant) strictly observing
all applicable deadlines in the performance of their duties under this Section
4.31(c), Section 4.28 and Section 4.29. The Master Servicer shall have no
liability for any loss, expense, damage or claim arising out of or with respect
to any failure to properly prepare and/or timely file such Form 10-K where
such
failure results from the Master Servicer’s inability or failure to receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
106
(d) If
directed to do so by the Depositor, on or before
January
30, 2008, the Master Servicer shall, in accordance with industry standards,
file
a Form 15 Suspension Notification with respect to the Trust under the Exchange
Act (a “Form 15”). The parties hereto hereby acknowledge that, in the event the
Depositor shall, subsequent to the filing of a Form 15, offer any Retained
Certificates in an offering registered with the Commission, the Trust shall
become subject to the Exchange Act reporting requirements at that time and,
thereafter, prior to January 30 of the following calendar year, the Master
Servicer shall, if directed to do so by the Depositor, in accordance with
industry standards, file a Form 15.
In
connection with any registered offering of any of the Retained Certificates:
(i)
the Depositor shall notify the Master Servicer in writing not less than 10
days
prior to the date on which such offering will be made; (ii) the Depositor shall
cause to be prepared and filed the initial current report on Form 8-K required
to be filed in connection with such offering; (iii) the Master Servicer, as
directed by the Depositor, shall file a report on Form 10-D for the Payment
Date
following the month in which such offering occurs and, thereafter, any reports
on forms 8-K, 10-K and 10-D in respect of the Trust as and to the extent
required under the Exchange Act, as set forth in this Section 4.31 (other than
the report referred to in clause (ii) above); (iv) the Depositor shall be
responsible for notifying the other parties to the transaction of such offering
and that the obligations of such parties to provide information in connection
with the Depositor’s Exchange Act reporting requirements have been reinstated;
and (v) the Depositor shall be responsible for all reasonable fees and expenses
incurred by the Master Servicer in connection with such offering, including
its
review and approval of any offering document and any amendment to any Basic
Document made in connection with such offering.
107
In
the
event that the Master Servicer becomes aware that it will be unable to timely
file with the Commission all or any required portion of any Form 8-K, 10-D
or
10-K required to be filed by this Agreement because required disclosure
information was either not delivered to it or delivered to it after the delivery
deadlines set forth in this Agreement or for any other reason, the Master
Servicer shall promptly notify the Depositor. In the case of Form 10-D and
10-K,
the parties to this Agreement will cooperate and cause such other Servicers
or
Servicing Function Participants, as applicable, to cooperate, to prepare and
file a Form 12b-25 and a 10-DA and 10-KA as applicable, pursuant to Rule 12b-25
of the Exchange Act. In the case of Form 8-K, the Master Servicer will, upon
receipt of all required Form 8-K Disclosure Information and upon the approval
and direction of the Depositor, include such disclosure information on the
next
Form 10-D. In the event that any previously filed Form 8-K, 10-D or 10-K needs
to be amended, the Master Servicer shall notify the Depositor and each
applicable Servicer and prepare any necessary 8-KA, 10-DA or 10-KA. Any Form
15,
Form 12b-25 or any amendment to Form 8-K or 10-D shall be signed by a duly
authorized representative of the Master Servicer and the Depositor shall sign
any amendment to Form 10-K. The parties to this Agreement acknowledge that
the
performance by the Master Servicer of its duties under this Section 4.31(d)
related to the timely preparation, execution and filing, as applicable, of
Form
15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent
upon
each such party performing its duties under this Section. The Master Servicer
shall have no liability for any loss, expense, damage or claim arising out
of or
with respect to any failure to properly prepare, execute and/or timely file,
as
applicable, any such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D
or 10-K where such failure results from the Master Servicer’s inability or
failure to receive, on a timely basis, any information from or on behalf of
any
other party hereto needed to prepare, arrange for execution or file such Form
15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting
from
its own negligence, bad faith or willful misconduct.
(e) If
so
requested, the Master Servicer shall sign a certification (in the form attached
hereto as Exhibit M) for the benefit of the Person(s) signing the Form 10-K
Certification regarding certain aspects of such Form 10-K Certification
(provided,
however,
that
the Master Servicer shall not be required to undertake an analysis of the
accountant’s report attached as an exhibit to the Form 10-K).
Section
4.32. Assignment
or Delegation of Duties by the Master Servicer.
Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any other Person to perform
any
of the duties, covenants or obligations to be performed by the Master Servicer
hereunder; provided,
however,
that the
Master Servicer shall have the right without the prior written consent of the
Trustee, the Depositor or the Rating Agencies to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to
perform and carry out any duties, covenants or obligations to be performed
and
carried out by the Master Servicer hereunder. In no case, however, shall any
such delegation, subcontracting or assignment to an Affiliate of the Master
Servicer relieve the Master Servicer of any liability hereunder. Notice of
such
permitted assignment shall be given promptly by the Master Servicer to the
Depositor and the Trustee. If, pursuant to any provision hereof, the duties
of
the Master Servicer are transferred to a Successor Master Servicer, the entire
amount of the Master Servicing Fee and other compensation payable to the Master
Servicer pursuant hereto after the date of such transfer, including amounts
payable to or permitted to be retained or withdrawn by the Master Servicer
pursuant to Section 4.24 hereof, shall thereafter be payable to such Successor
Master Servicer.
108
Section
4.33. Limitation
on Liability of the Master Servicer and Others.
Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Trustee, the Depositor
or the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; provided,
however,
that
this provision shall not protect the Master Servicer or any such person against
any liability that would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in its performance of its duties or by reason of
reckless disregard for its obligations and duties under this Agreement. The
Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Master Servicer shall be under no obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties to master service
the Mortgage Loans in accordance with this Agreement and that in its opinion
may
involve it in any expense or liability; provided,
however,
that the
Master Servicer may in its sole discretion undertake any such action that it
may
deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor
out of the Collection Account as provided in Section 4.08.
The
Master Servicer shall not be liable, and shall be indemnified from the Trust
Fund, for any acts or omissions of any Servicer except to the extent the Trust
Fund incurs damages or expenses as a result of such acts or omissions and such
damages and expenses would not have been incurred but for the negligence,
willful misfeasance, bad faith or recklessness of the Master Servicer in
supervising, monitoring and overseeing the obligations of the Servicers in
accordance with Section 4.01 hereof.
Section
4.34. Transfer
of Servicing.
The
Servicing Rights Owner shall provide written notice to the Trustee, the
Depositor, the Swap Counterparty and the Master Servicer thirty days prior
to
any transfer or assignment by the Servicing Rights Owner of its rights under
any
Servicing Agreement or of the servicing thereunder or delegation of its rights
or duties thereunder or any portion thereof to any other Person. In addition,
the transfer or assignment of rights and delegation of duties under any
Servicing Agreement or the transfer of the servicing thereunder to a successor
servicer (whether by the Servicing Rights Owner or the Master Servicer) shall
be
subject to the following conditions:
(a) Such
successor servicer must satisfy the seller/servicer eligibility standards in
the
applicable Servicing Agreement and any applicable Pool PMI Insurance Policy
and
must be reasonably acceptable to the Master Servicer, whose approval shall
not
be unreasonably withheld;
109
(b) Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by the Servicer under the applicable
Servicing Agreement;
(c) There
must be delivered to the Trustee and the Master Servicer a letter from each
Rating Agency to the effect that such transfer of servicing will not result
in a
qualification, withdrawal or downgrade of the then-current rating of any of
the
Certificates; provided,
however,
that
this requirement shall not apply to any transfer of servicing to M&T Bank or
to a successor servicer that is, prior to the date of such transfer, a Servicer
of Mortgage Loans;
(d) The
Servicing Rights Owner shall, at its cost and expense, take such steps, or
cause
the terminated Servicer to take such steps, as may be necessary or appropriate
to effectuate and evidence the transfer of the servicing of the related Mortgage
Loans to such successor servicer, including, but not limited to, the following:
(i) to the extent required by the terms of the Mortgage Loans and by applicable
federal and state laws and regulations, the Servicing Rights Owner shall cause
the prior Servicer to timely mail to each obligor under a Mortgage Loan any
required notices or disclosures describing the transfer of servicing of the
Mortgage Loans to the successor servicer; (ii) prior to the effective date
of
such transfer of servicing, the Servicing Rights Owner shall cause the prior
Servicer to transmit to any related insurer notification of such transfer of
servicing; (iii) on or prior to the effective date of such transfer of
servicing, the Servicing Rights Owner shall cause the prior Servicer to deliver
to the successor servicer all related loan documents and any related records
or
materials; (iv) on or prior to the effective date of such transfer of servicing,
the Servicing Rights Owner shall cause the prior Servicer to transfer to the
successor servicer, or, if such transfer occurs after a Servicer Remittance
Date
but before the next succeeding Master Servicer Remittance Date, to the Master
Servicer, all funds held by the Servicer in respect of the Mortgage Loans;
(v)
on or prior to the effective date of such transfer of servicing, the Servicing
Rights Owner shall cause the prior Servicer to, after the effective date of
the
transfer of servicing to the successor servicer, continue to forward to such
successor servicer, within one Business Day of receipt, the amount of any
payments or other recoveries received by the prior Servicer, and to notify
the
successor servicer of the source and proper application of each such payment
or
recovery; and (vi) the Servicing Rights Owner shall cause the prior Servicer
to,
after the effective date of transfer of servicing to the successor servicer,
continue to cooperate with the successor servicer to facilitate such transfer
in
such manner and to such extent as the successor servicer may reasonably
request;
(e) In
the
event that the Servicing Rights Owner transfers its servicing rights under
the
applicable Servicing Agreement, any successor Servicing Rights Owner of the
servicing rights shall acknowledge in writing that it is subject to the
provisions of Section 4.06 in respect of the obligations of the Seller
thereunder and Section 4.34 of this Agreement; and
(f) Prior
to
amending any Servicing Agreement or consenting to any amendment or modification
thereof, the Servicing Rights Owner shall obtain the prior written consent
of
the Master Servicer and the Trustee (such consent to be not unreasonably
withheld) and shall obtain the consent of any Pool PMI Insurer, to the extent
that such consent is required under the related Pool PMI Insurance
Policy.
110
Section
4.35. Master
Servicer Exchange Act Reporting Requirements.
Notwithstanding
any other provision of this Agreement, to the extent that, following the Closing
Date, the contents of Forms 8-K, 10-D, 10-K or other Forms required by the
Exchange Act and the rules and regulations of the Commission, or the time by
which such Forms are required to be filed, differ from the provisions of this
Agreement, the Master Servicer hereby agrees that it shall reasonably cooperate
to amend the provisions of this Agreement (in accordance with Section 10.05)
in
order to comply with such amended reporting requirements. Any such amendment
to
this Agreement may result in the reduction or increase of the reports filed
under the Exchange Act. Notwithstanding the foregoing, the Master Servicer
shall
not be obligated to enter into any amendment pursuant to this Section that
adversely affects its obligations and immunities under this
Agreement.
ARTICLE
V
THE
CERTIFICATES
Section
5.01. The
Certificates.
The
Certificates shall be substantially in the forms attached hereto as Exhibit
A.
The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount which must be in excess of
the
applicable minimum denomination) and aggregate denominations per Class set
forth
in the Preliminary Statement to this Agreement. The Trustee agrees to hold
the
Trust Fund for the benefit of all present and future Holders of the
Certificates.
Subject
to Section 10.02 respecting the final distribution on the Certificates, on
each
Distribution Date the Trustee shall make distributions to each Certificateholder
of record on the preceding Record Date either by wire transfer in immediately
available funds or by check, as provided in Section 6.06.
The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Trustee by an authorized officer. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures were
affixed, authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the countersignature 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 countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the
only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at
the
direction of the Depositor, or any affiliate thereof.
The
Depositor shall provide, or cause to be provided, to the Trustee on a continuous
basis, an adequate inventory of Certificates to facilitate
transfers.
111
Section
5.02. Certificate
Register; Registration of Transfer and Exchange of Certificates.
(a) The
Trustee shall maintain, or cause to be maintained in accordance with the
provisions of Section 5.06 hereof, a Certificate Register for the Trust Fund
in
which, subject to the provisions of subsections (b), (c) and (d) below and
to
such reasonable regulations as it may prescribe, the Trustee shall provide
for
the registration of Certificates of transfers and exchanges of Certificates
as
herein provided; provided,
however,
that
the Residual Certificates shall be issued and maintained in fully registered
form. Upon surrender for registration of transfer of any Certificate, the
Trustee shall execute and deliver, in the name of the designated transferee
or
transferees, one or more new Certificates of the same Class and aggregate
Percentage Interest. The Trustee initially shall be the “Certificate Registrar.”
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates
are
so surrendered for exchange, the Trustee shall execute, 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 be accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the holder thereof or his attorney
duly authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Trustee in accordance with the
Trustee’s customary procedures.
(b) No
transfer of a Restricted Certificate shall be made unless the Trustee shall
have
received from the transferee a certification in substantially the form set
forth
in Exhibit K hereto, addressed to the Trustee and the Certificate Registrar
and
any of their respective successors, to the effect that:
(i) Such
Person is a “qualified institutional buyer” as defined in Rule 144A under the
Securities Act;
(ii) Such
Person is duly authorized to purchase the Restricted Certificates and its
purchase of investments having the characteristics of the Restricted
Certificates is authorized under, and not directly or indirectly in
contravention of, any law, charter, trust instrument or other operative
document, investment guidelines or list of permissible or impermissible
investments that is applicable to the investor; and
(iii) Such
Person understands that each holder of a Certificate, by virtue of its
acceptance thereof, assents to the terms, provisions and conditions of this
Agreement.
112
In
the
event that a Certificate is transferred to a Person that does not meet the
requirements of this Section 5.02, such transfer will be of no force and effect,
will be void ab
initio,
and
will not operate to transfer any rights to such Person, notwithstanding any
instructions to the contrary to the Issuer, the Trustee or any intermediary;
and
the Trustee shall not make any distributions on such Certificate for as long
as
such Person is the Holder of such Certificate and the Trustee shall have the
right to compel such Person to transfer such Certificate to a Person who does
meet the requirements of this Section 5.02.
Each
Holder of a Restricted Certificate (or Certificate Owner) desiring to effect
such a transfer shall, and does hereby agree to, indemnify the Trustee and
the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with federal and state securities laws and any
other restrictions specified in this Section 5.02. Each holder of a Book-Entry
Certificate shall be deemed to have consented to such transfer
restrictions.
The
Trustee shall cause each Certificate to contain a legend substantially similar
to the applicable legend provided in Exhibit A hereto stating that transfer
of
such Certificates is subject to certain restrictions as set forth
herein.
(c) (1)
No
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received either (A) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
(substantially in the form of Exhibit L, or in the event such ERISA-Restricted
Certificate is a Residual Certificate substantially in the form of Exhibit
O),
to the effect that (x) such transferee is neither a Plan nor a person acting
for, on behalf of, or with the assets of, any such Plan to effect such transfer
or (y) if the ERISA-Restricted Certificate has been the subject of an
ERISA-Qualifying Underwriting, the purchaser is an insurance company which
is
purchasing such Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section (V)(e) of prohibited
transaction class exemption 95-60 (“PTCE 95-60”)) and the purchase and holding
of ERISA-Restricted Certificates are covered under Sections I and III of PTCE
95-60; or (B) in the case of any such ERISA-Restricted Certificate presented
for
registration in the name of a Plan or a person acting for, on behalf of, or
with
the assets of, a Plan, an Opinion of Counsel satisfactory to the Trustee, which
Opinion of Counsel shall not be an expense of any of the Trustee, the Depositor,
the Master Servicer, any Servicer, the Seller or the Trust Fund, addressed
to
the Trustee to the effect that the purchase and holding of such ERISA-Restricted
Certificate will not result in a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code and will not subject the Trustee,
the
Depositor, the Master Servicer, any Servicer or the Seller to any obligation
in
addition to those expressly undertaken in this Agreement. For purposes of the
preceding sentence, with respect to an ERISA-Restricted Certificate that is
not
a Residual Certificate, in the event the representation letter referred to
in
the preceding sentence is not so furnished, such representation shall be deemed
to have been made to the Trustee by the transferee’s (including an initial
acquirer’s) acceptance of the ERISA-Restricted Certificates. Notwithstanding
anything else to the contrary herein, any purported transfer of an
ERISA-Restricted Certificate to or on behalf of a Plan without the delivery
to
the Trustee of an Opinion of Counsel or representation letter satisfactory
to
the Trustee as described above shall be void and of no effect.
113
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Certificate that is in fact not permitted
by
this Section 5.02(c) or for making any payments due on such Certificate to
the
Holder thereof or taking any other action with respect to such Holder under
the
provisions of this Agreement so long as the transfer was registered by the
Trustee in accordance with the foregoing requirements.
(ii) No
transfer of an ERISA-Restricted Trust Certificate prior to the termination
of
the Swap Agreement or while any amounts received from the Swap Counterparty
under the Swap Agreement remain on deposit in the Reserve Fund shall be made
unless the Trustee shall have received a representation letter from the
transferee of such Certificate, substantially in the form set forth in Exhibit
L, to the effect that either (x) such transferee is neither a Plan nor a Person
acting on behalf of any such Plan or using the assets of any such Plan to effect
such transfer or (y) the acquisition and holding of the ERISA-Restricted Trust
Certificate are eligible for exemptive relief under Prohibited Transaction
Class
Exemption (“PTCE”) 00-00, XXXX 00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23 or the
non-fiduciary service provider exemption under Section 408(b)(17) of ERISA.
Notwithstanding anything else to the contrary herein, any purported transfer
of
an ERISA-Restricted Trust Certificate prior to the termination of the Swap
Agreement, or while any amounts received from the Swap Counterparty under the
Swap Agreement remain on deposit in the Reserve Fund, to or on behalf of a
Plan
without the delivery to the Trustee of a representation letter as described
above shall be void and of no effect. If the ERISA-Restricted Trust Certificate
is a Book-Entry Certificate, the transferee will be deemed to have made a
representation as provided in clause (x) or (y) of this paragraph, as
applicable.
If
any
ERISA-Restricted Trust Certificate, or any interest therein, is acquired or
held
in violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Trust Certificate, or interest therein, was effected in
violation of the provisions of the preceding paragraph shall indemnify to the
extent permitted by law and hold harmless the Depositor, the Trustee and the
Master Servicer from and against any and all liabilities, claims, costs or
expenses incurred by such parties as a result of such acquisition or
holding.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Trust Certificate that is in fact not permitted
by this Section 5.02(c)(ii) or for making any payments due on such Certificate
to the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the transfer was registered
by
the Trustee in accordance with the foregoing requirements.
(d) 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 the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
114
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless, in addition to the certificates required
to
be delivered to the Trustee under subparagraph (b) above, the Trustee shall
have
been furnished with an affidavit of the transferor in the form attached hereto
as Exhibit N (a “Transferor Affidavit”) and of the proposed transferee in the
form attached hereto as Exhibit O (a “Transferee Affidavit”), representing and
warranting, among other things, that such transferee is neither a Disqualified
Organization, an agent or nominee acting on behalf of a Disqualified
Organization, nor a Non-permitted Foreign Holder (any such transferee, a
“Permitted Transferee”); provided
that no
such affidavit shall be required to register on the Closing Date an Ownership
Interest of the Seller (or an Affiliate thereof) or the Trustee in a Residual
Certificate.
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transferee Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transferee Affidavit from any Person for whom
such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Residual Certificate and (C) not to Transfer its Ownership Interest in a
Residual Certificate or to cause the Transfer of an Ownership Interest in a
Residual Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(d) shall be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(d), then the last preceding
Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not permitted
by Section 5.02(c) and this Section 5.02(d) or for making any payments due
on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the Transfer
was registered after receipt of the related Transferor Affidavit, Transferee
Affidavit and either the Rule 144A Letter or the Investment Letter. The Trustee
shall be entitled but not obligated to recover from any Holder of a Residual
Certificate that was in fact not a Permitted Transferee at the time it became
a
Holder or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after either
such time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of such
Certificate.
115
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on transfers of a Residual Certificate set forth in this Section
5.02(d) shall cease to apply (and the applicable portions of the legend on
a
Residual Certificate may be deleted) with respect to transfers occurring after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall
not be an expense of the Trust Fund, the Trustee, the Seller or the Master
Servicer, to the effect that the elimination of such restrictions will not
cause
an Adverse REMIC Event, or the imposition of any tax on a Certificateholder
or
another Person. Each Person holding or acquiring any Ownership Interest in
a
Residual Certificate hereby consents to any amendment of this Agreement which,
based on an Opinion of Counsel furnished to the Trustee, is reasonably necessary
(a) to ensure that the record ownership of, or any beneficial interest in,
a
Residual Certificate is not transferred, directly or indirectly, to a Person
that is not a Permitted Transferee and (b) to provide for a means to compel
the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(e) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of the
parties to such transfers.
(f) Except
as
provided 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 the Certificates may not be transferred by the Trustee 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
Book-Entry Certificates; (iii) ownership and transfers of registration of the
Book-Entry 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 shall deal with the Depository, Depository
Participants and indirect participating firms as representatives of the
Certificate Owners of the Book-Entry Certificates for purposes of exercising
the
rights of holders under this Agreement, and requests and directions for and
votes of such representatives shall not be deemed to be inconsistent if they
are
made with respect to different Certificate Owners; and (vi) the Trustee 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.
(g) 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 Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures.
116
If
(x)
(i) the Depository or the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor, or (y) after the occurrence of an Event of
Master Servicer Default, Certificate Owners representing at least 51% of the
aggregate Class Principal Balance of the Book-Entry Certificates together advise
the Trustee and the Depository through the Depository Participants in writing
that the continuation of a book-entry system through the Depository is no longer
in the best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully registered Certificates (the
“Definitive Certificates”) to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. Neither the Master Servicer,
the Depositor nor the Trustee shall be liable for any delay in delivery of
such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trustee,
to
the extent applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided
that the
Trustee shall not by virtue of its assumption of such obligations become liable
to any party for any act or failure to act of the Depository.
Section
5.03. [Reserved]
Section
5.04. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a)
any mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Master Servicer and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute,
countersign and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.04, the Trustee 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)
connected therewith. Any replacement Certificate issued pursuant to this Section
5.04 shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section
5.05. Persons
Deemed Owners.
The
Master Servicer, the Trustee and any agent of the Master Servicer or the Trustee
may treat the Person in whose name any Certificate is registered as the owner
of
such Certificate for the purpose of receiving distributions as provided in
this
Agreement and for all other purposes whatsoever, and neither the Master
Servicer, the Trustee nor any agent of the Master Servicer or the Trustee shall
be affected by any notice to the contrary.
117
Section
5.06. Access
to List of Certificateholders’ Names and Addresses.
If
three
or more Certificateholders (a) request such information in writing from the
Trustee, (b) state that such Certificateholders desire to communicate with
other
Certificateholders with respect to their rights under this Agreement or under
the Certificates, and (c) provide a copy of the communication which such
Certificateholders propose to transmit, or if the Depositor or Master Servicer
shall request such information in writing from the Trustee, then the Trustee
shall, within ten Business Days after the receipt of such request, provide
the
Depositor, the Master Servicer or such Certificateholders at such recipients’
expense the most recent list of the Certificateholders of such Trust Fund held
by the Trustee, if any. The Depositor and every Certificateholder, by receiving
and holding a Certificate, agree that the Trustee shall not be held accountable
by reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section
5.07. Maintenance
of Office or Agency.
The
Trustee will maintain or cause to be maintained at its expense an office or
offices or agency or agencies in New York City where Certificates may be
surrendered for registration of transfer or exchange. The Trustee initially
designates its Corporate Trust Office for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
ARTICLE
VI
DEPOSITS
AND DISTRIBUTIONS
Section
6.01. Rights
of the Holders.
Amounts
held by the Trustee for future distribution to the Certificateholders,
including, without limitation, amounts in the Collection Account, the Reserve
Fund, the Swap Account and the Certificate Distribution Account, shall not
be
distributed except in accordance with the terms of this Agreement.
Section
6.02. Establishment
of Trust Accounts.
(a) (2)
The
Master Servicer shall establish and maintain in the name of the Trustee the
Collection Account as provided in Section 4.07, which account shall be property
of the Trust Fund.
(ii) The
Trustee, for the benefit of the Certificateholders, shall establish and maintain
in the name of the Trustee an Eligible Account (the “Certificate Distribution
Account”), bearing a designation clearly indicating that the funds deposited
therein (without regard to any income or gain resulting from the investment
thereof) are held for the benefit of the Certificateholders.
118
(iii) The
Trustee, for the benefit of the holders of the Group 1 Certificates, the LIBOR
Certificates and the Class X Certificates, shall establish and maintain in
the
name of the Trustee an Eligible Account (the “Reserve Fund”), bearing a
designation clearly indicating that the funds deposited therein are held for
the
benefit of the above-referenced Certificateholders.
(b) (3) Funds
on
deposit in the Collection Account and the Certificate Distribution Account
(each, a “Trust Account”) may be invested, and if invested shall be invested in
Eligible Investments selected by the Master Servicer, in the case of the
Collection Account, and the Trustee, in the case of the Certificate Distribution
Account, and such investments shall not be sold or disposed of prior to their
maturity. All such investments shall be made in the name of the Trustee in
the
manner provided herein. All such investments shall be held by the Master
Servicer or the Trustee, as applicable, for the benefit of the
Certificateholders; provided
that
amounts on deposit in the Collection Account shall be applied as provided in
the
last sentence of this paragraph; and provided,
further,
that
the Trustee shall be entitled to any income or gain realized on any such
investment of amounts on deposit in the Certificate Distribution Account. Other
than as permitted by each Rating Agency, funds on deposit in the Trust Accounts,
if invested, shall be invested in Eligible Investments that will mature not
later than the Business Day immediately preceding the next Distribution Date
(or
on such next Distribution Date if either (x) such investment is held in the
trust department of the institution with which such Trust Account is then
maintained and is invested in a time deposit of the Trustee rated at least
A-1
(or the equivalent) by each Rating Agency (such account being maintained within
the trust department of the Trustee) or (y) the Trustee (so long as the
short-term unsecured debt obligations of the Trustee are either (A) rated at
least A-1 (or the equivalent) by each Rating Agency on the date such investment
is made or (B) guaranteed by an entity whose short-term unsecured debt
obligations are rated at least A-1 (or the equivalent) by each Rating Agency
on
the date such investment is made) has agreed to advance funds on such
Distribution Date to such Trust Account in the amount payable on such investment
on such Distribution Date pending receipt thereof to the extent necessary to
make distributions on such Distribution Date). For the purposes of the
foregoing, unless the Trustee affirmatively agrees in writing to make such
advance with respect to such investment prior to the time an investment is
made,
it shall not be deemed to have agreed to make such advance and it shall not
be
responsible to make such advance. The Master Servicer shall deposit into the
Collection Account an amount equal to any loss realized on any investment of
funds in the Collection Account immediately as any such loss is realized. The
Trustee shall deposit in the Certificate Distribution Account, an amount equal
to any loss realized on any investment of funds in such account immediately
as
any such loss is realized. Funds on deposit in the Collection Account shall
be
withdrawn therefrom by the Master Servicer on the Master Servicer Remittance
Date immediately preceding each Distribution Date to make deposits and
distributions on each such date in the manner and priorities set forth in
Section 4.08.
(ii) Funds
on
deposit in the Reserve Fund shall be invested only in Eligible Investments
specified in clause (i) of the definition thereof at the written direction
of
the Sponsor or by an investment manager in Eligible Investments selected by
such
investment manager; provided
that (A)
such investment manager shall be selected by the Sponsor, (B) such investment
manager shall have agreed to comply with the terms of this Agreement as it
relates to investing such funds and (C) any investment so selected by such
investment manager shall be made in the name of the Trustee (or its nominee)
and
shall be settled by a delivery to the Trustee (or its nominee) that complies
with the terms of this Agreement as it relates to investing such funds. Such
investments shall not be sold or disposed of prior to their maturity. All income
and gain realized from such investments shall be applied as provided in Section
6.12. The Trustee shall not in any way be held liable by reason of any
insufficiency in the Reserve Fund resulting from any investment loss on any
investment made hereunder.
119
(c) The
Trustee shall possess all right, title and interest in all funds on deposit
from
time to time in the Trust Accounts and in all proceeds thereof (including all
income thereon) and all such funds, investments, proceeds and income shall
be
part of the Trust Fund. The Trust Accounts shall be under the sole dominion
and
control of the Trustee for the benefit of the Certificateholders. If, at any
time, any of the Trust Accounts ceases to be an Eligible Account, the Trustee
(or the Master Servicer on its behalf) shall within 30 Business Days establish
a
new Trust Account as applicable, as an Eligible Account and shall transfer
any
cash and/or any investments to such new account.
The
Depositor and the Trustee hereby appoint U.S. Bank National Association as
Securities Intermediary with respect to the Trust Accounts and the Trustee
shall
hold, for the benefit of the Certificateholders, the Certificate Distribution
Account and the Security Entitlements to all Financial Assets credited to the
Trust Accounts, including without limitation all amounts, securities,
investments, Financial Assets, investment property and other property from
time
to time deposited in or credited to the Trust Accounts and
all
proceeds thereof. Amounts held from time to time in the Trust Accounts will
continue to be held by the Securities Intermediary for the benefit of the
Trustee for the benefit of the Certificateholders.
Upon the
termination of the Trust Fund the Trustee shall inform the Securities
Intermediary of such termination. By acceptance of their Certificates or
interests therein, the Certificateholders shall be deemed to have appointed
U.S.
Bank
National Association
as
Securities Intermediary. U.S.
Bank
National Association
hereby
accepts such appointment as Securities Intermediary.
(i) With
respect to the Trust Account Property credited to the Trust Accounts, the
Securities Intermediary agrees that:
(A) with
respect to any Trust Account Property that is held in deposit accounts, each
such deposit account shall be subject to the exclusive custody and control
of
the Securities Intermediary, and the Securities Intermediary shall have sole
signature authority with respect thereto;
(B) the
sole
assets permitted in the Trust Accounts shall be those as the Securities
Intermediary agrees to treat as Financial Assets; and
(C) any
such
Trust Account Property that is, or is treated as, a Financial Asset shall be
physically delivered (accompanied by any required endorsements) to, or credited
to an account in the name of, the Securities Intermediary or other eligible
institution maintaining any Trust Account in accordance with the Securities
Intermediary’s customary procedures such that the Securities Intermediary or
such other institution establishes a Security Entitlement in favor of the
Trustee with respect thereto over which the Securities Intermediary or such
other institution has Control;
120
(ii) The
Securities Intermediary hereby confirms that (A) each Trust Account is an
account to which Financial Assets are or may be credited, and the Securities
Intermediary shall, subject to the terms of this Agreement, treat the Trustee
as
entitled to exercise the rights that comprise any Financial Asset credited
to
any Trust Account, (B) all Trust Account Property in respect of any Trust
Account will be promptly credited by the Securities Intermediary to such
account, and (C) all securities or other property underlying any Financial
Assets credited to any Trust Account shall be registered in the name of the
Securities Intermediary, endorsed to the Securities Intermediary or in blank
or
credited to another securities account maintained in the name of the Securities
Intermediary and in no case will any Financial Asset credited to any Trust
Account shall be registered in the name of the Seller or the Depositor, payable
to the order of the Seller or the Depositor or specially endorsed to the Seller
or the Depositor, except to the extent the foregoing have been specially
endorsed to the Securities Intermediary or in blank;
(iii) The
Securities Intermediary hereby agrees that each item of property (whether
investment property, Financial Asset, security, instrument or cash) credited
to
any Trust Account shall be treated as a Financial Asset;
(iv) If
at any
time the Securities Intermediary shall receive any order from the Trustee
directing transfer or redemption of any Financial Asset relating to any Trust
Account, the Securities Intermediary shall comply with such Entitlement Order
without further consent by the Seller, the Depositor or any other
Person;
(v) In
the
event that the Securities Intermediary has or subsequently obtains by agreement,
operation of law or otherwise a security interest in any Trust Account or any
Financial Asset credited thereto, the Securities Intermediary hereby agrees
that
such security interest shall be subordinate to the ownership interest of the
Trustee. The Financial Assets credited to the Trust Accounts will not be subject
to deduction, set-off, banker’s lien, or any other right in favor of any Person
other than the Trustee (except that the Securities Intermediary may set-off
(i)
all amounts due to it in respect of its customary fees and expenses for the
routine maintenance and operation of the Trust Accounts, and (ii) the face
amount of any checks which have been credited to any Trust Account but are
subsequently returned unpaid because of uncollected or insufficient
funds);
(vi) There
are
no other agreements entered into between the Securities Intermediary in such
capacity and the Depositor with respect to any Trust Account. In the event
of
any conflict between this Agreement (or any provision of this Agreement) and
any
other agreement now existing or hereafter entered into, the terms of this
Agreement shall prevail;
(vii) The
rights and powers granted herein to the Trustee have been granted in order
to
perfect its ownership interest in the Trust Accounts and the Security
Entitlements to the Financial Assets credited thereto, and are powers coupled
with an interest and will neither be affected by the dissolution or bankruptcy
of the Depositor nor by the lapse of time. The obligations of the Securities
Intermediary hereunder shall continue in effect until the ownership interest
of
the Trustee in the Trust Accounts, and in such Security Entitlements, has been
terminated pursuant to the terms of this Agreement and the Trustee has notified
the Securities Intermediary of such termination in writing; and
121
(viii) Notwithstanding
anything else contained herein, the Depositor and the Trustee agree that the
Trust Accounts will be established only with the Securities Intermediary or
another institution meeting the requirements of this Section, which by
acceptance of its appointment as Securities Intermediary agrees substantially
as
follows: (1) it will comply with Entitlement Orders related to the Trust
Accounts issued by the Trustee without further consent by the Seller or the
Depositor; (2) until termination of the Trust Fund, it will not enter into
any other agreement related to such accounts pursuant to which it agrees to
comply with Entitlement Orders of any Person other than the Trustee; and (3)
all
assets delivered or credited to it in connection with such accounts and all
investments thereof will be promptly credited to the applicable
account.
(d) Notwithstanding
the foregoing, the Depositor shall have the power, revocable by the Trustee,
to
instruct the Trustee and the Master Servicer to make withdrawals and
distributions from the Trust Accounts for the purpose of permitting the Master
Servicer, the Trustee or the Depositor to carry out its respective duties
hereunder.
(e) The
Depositor agrees to take or cause to be taken such further actions, to execute,
deliver and file or cause to be executed, delivered and filed such further
documents and instruments (including, without limitation, any financing
statements under the Relevant UCC or this Agreement) as may be necessary to
perfect the interests created by this Section in favor of the Trustee on behalf
of Certificateholders and otherwise fully to effectuate the purposes, terms
and
conditions of this Section. The Depositor shall:
(i) promptly
execute, deliver and file any financing statements, amendments, continuation
statements, assignments, certificates and other documents with respect to such
interests and perform all such other acts as may be necessary in order to
perfect or to maintain the perfection of the Trustee’s ownership interest in the
Trust Account Property; and
(ii) make
the
necessary filings of financing statements or amendments thereto within five
days
after the occurrence of any of the following: (1) any change in its corporate
name or any trade name or its jurisdiction of organization; (2) any change
in
the location of its chief executive office or principal place of business;
and
(3) any merger or consolidation or other change in its identity or corporate
structure and promptly notify the Trustee of any such filings.
The
Depositor shall not organize under the law of any jurisdiction other than the
State under which it is organized as of the Closing Date (whether changing
its
jurisdiction of organization or organizing under an additional jurisdiction)
without giving 30 days prior written notice of such action to its immediate
and
mediate transferee, including the Trustee. Before effecting such change, the
Depositor shall prepare and file in the appropriate filing office any financing
statements or other statements necessary to continue the perfection of the
interests of its immediate and mediate transferees, including the Trustee,
in
the Trust Account Property. In connection with the transactions contemplated
by
the Basic Documents relating to the Trust Account Property, the Depositor
authorizes its immediate or mediate transferee, including the Trustee, to file
in any filing office any initial financing statements, any amendments to
financing statements, any continuation statements, or any other statements
or
filings described in this Section 6.02(e).
122
None
of
the Securities Intermediary or any director, officer, employee or agent of
the
Securities Intermediary shall be under any liability to the Trustee or the
Certificateholders for any action taken, or not taken, in good faith pursuant
to
this Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Securities Intermediary against any
liability to the Trustee or the Certificateholders which would otherwise be
imposed by reason of the Securities Intermediary’s willful misconduct, bad faith
or negligence in the performance of its obligations or duties hereunder. The
Securities Intermediary and any director, officer, employee or agent of the
Securities Intermediary may rely in good faith on any document of any kind
which, prima
facie,
is
properly executed and submitted by any Person respecting any matters arising
hereunder. The Securities Intermediary shall be under no duty to inquire into
or
investigate the validity, accuracy or content of such document. The Trust Fund
shall indemnify the Securities Intermediary for and hold it harmless against
any
loss, liability or expense arising out of or in connection with this Agreement
and carrying out its duties hereunder, including the costs and expenses of
defending itself against any claim of liability, except in those cases where
the
Securities Intermediary has been guilty of bad faith, negligence or willful
misconduct. The foregoing indemnification shall survive any termination of
this
Agreement.
Section
6.03. [Reserved]
Section
6.04. Collections.
(a) The
Master Servicer shall provide each Servicer with such instructions as are
necessary to permit the transfer by wire transfer in immediately available
funds
of all amounts on deposit in the Custodial Accounts which constitute collections
to the Collection Account on the Servicer Remittance Date specified in the
related Servicing Agreement.
(b) On
or
prior to each Master Servicer Remittance Date, the Master Servicer shall
determine (by Mortgage Pool and in the aggregate) the Interest Remittance
Amount, the Principal Remittance Amount, the Principal Distribution Amount,
the
Total Distribution Amount, the Trustee Fee and the Custodian Fee, in each case
for the related Distribution Date. For purposes of this Section 6.04 and Section
6.08, with respect to any Distribution Date, in determining the amount received
from the Cap Provider, the Master Servicer shall be entitled to rely
conclusively on the accuracy of the information provided to it by the Cap
Provider or by the Trustee, as applicable, and the Master Servicer shall not
be
obligated to verify, recompute, reconcile or recalculate any such
amount.
123
(c) On
each
Master Servicer Remittance Date, the Master Servicer shall remit the Total
Distribution Amount for the related Distribution Date, exclusive of any amounts
received with respect to the related Distribution Date under the Cap Agreement
that have not been deposited in the Collection Account, to the Certificate
Distribution Account.
(d) The
Trustee shall deposit into the Certificate Distribution Account on the day
on
which, or, if such day is not a Business Day, the Business Day immediately
following the day on which, any payments or distributions are received by the
Trustee with respect to the Cap Agreement, all such amounts.
Section
6.05. Flow
of Funds.
(a) On
each
Distribution Date (or with respect to payments to the Swap Counterparty, on
the
related Swap Payment Date), the Trustee shall withdraw from the Certificate
Distribution Account, to the extent of funds on deposit therein, the Total
Distribution Amount and amounts that are available for payment to the Swap
Counterparty, and shall allocate such amounts to the Interests issued in respect
of each REMIC created hereby, as set forth in the Preliminary Statement to
this
Agreement, and shall distribute such amounts as specified in this Section.
All
allocations and distributions made between and with respect to Pool 1 and Pool
2
in this Section shall be made concurrently.
(b) On
each
Distribution Date (or, with respect to clause (i) below, the related Swap
Payment Date), the Trustee shall distribute the Interest Remittance Amount
for
Pool 1 for such date in the following order of priority:
(i) for
deposit into the Swap Account, an amount equal to the lesser
of (A)
the amount of any Net Swap Payment or Swap Termination Payment (to the extent
not due to a Swap Counterparty Trigger Event) owed to the Swap Counterparty
and
(B) the Interest Remittance Amount for Pool 1 for such Distribution Date,
to the
extent not paid pursuant to Section 6.05(c)(i);
(ii) to
the
Trustee, the Pool 1 allocable portion (based on the Pool Percentage for Pool
1)
of the Trustee Fee and the Pool 1 allocable portion (based on the Pool
Percentage for Pool 1) of the Custodian Fee;
(iii) to
the
A-IO(1) Component, Current Interest and any Carryforward Interest for such
Component and such Distribution Date;
(iv) concurrently,
to the
Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4 and Class 1-A5 Certificates,
in
each case in proportion to the amounts distributable under this Section
6.05(b)(iv),
Current Interest and any Carryforward Interest for each such Class and such
Distribution Date;
(v) concurrently,
to the
Class 2-A1, Class 2-A2, Class 2-A3 and Class 2-A4 Certificates, in each case
in
proportion to the amounts distributable under this Section 6.05(b)(v), Current
Interest and any Carryforward Interest (after giving effect to distributions
pursuant to Section 6.05(c)(iv) below) for each such Class and such Distribution
Date;
(vi) to
the
Class M-1 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
124
(vii) to
the
Class M-2 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
(viii) to
the
Class M-3 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
(ix) to
the
Class M-4 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
(x) to
the
Class B-1 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
(xi) to
the
Class B-2 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
(xii) to
the
Trustee, the Pool 1 allocable portion (based on the applicable Pool Percentage)
of any amounts reimbursable pursuant to this Agreement and not previously
reimbursed to the Trustee due to application of the limitations on amounts
reimbursable in any Anniversary Year; and
(xiii) for
application as part of Pool 1 Excess Interest for such Distribution Date,
as
provided in subsection (e) of this Section, any Interest Remittance Amount
for
Pool 1 remaining after application pursuant to clauses (i) through (xii)
above.
(c) On
each
Distribution Date (or with respect to clause (i) below, the related Swap
Payment
Date), the Trustee shall distribute the Interest Remittance Amount for Pool
2
for such date in the following order of priority:
(i) for
deposit into the Swap Account, the lesser
of (A)
the amount of any Net Swap Payment or Swap Termination Payment (to the extent
not due to a Swap Counterparty Trigger Event) owed to the Swap Counterparty
and
(B) the Interest Remittance Amount for Pool 2 for such Distribution
Date;
(ii) to
the
Trustee, the Pool 2 allocable portion (based on the Pool Percentage for Pool
2)
of the Trustee Fee and the Pool 2 allocable portion (based on the Pool
Percentage for Pool 2) of the Custodian Fee;
(iii) to
the
A-IO(2) Component, Current Interest and any Carryforward Interest for such
Component and such Distribution Date;
(iv) concurrently,
to the
Class 2-A1, Class 2-A2, Class 2-A3 and Class 2-A4 Certificates, in each case
in
proportion to the amounts distributable under this Section 6.05(c)(iv), Current
Interest and any Carryforward Interest for each such Class and such Distribution
Date;
(v) concurrently,
to the
Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4 and Class 1-A5 Certificates,
in
each case in proportion to the amounts distributable under this Section
6.05(c)(v), Current Interest and any Carryforward Interest (after giving
effect
to distributions pursuant to Section 6.05(b)(iv) above) for each such Class
and
such Distribution Date;
125
(vi) to
the
Class M-1 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
(vii) to
the
Class M-2 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
(viii) to
the
Class M-3 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
(ix) to
the
Class M-4 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
(x) to
the
Class B-1 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
(xi) to
the
Class B-2 Certificates, Current Interest and any Carryforward Interest for
such
Class and such Distribution Date;
(xii) to
the
Trustee, the Pool 2 allocable portion (based on the applicable Pool Percentage)
of any amounts reimbursable pursuant to this Agreement and not previously
reimbursed to the Trustee due to application of the limitations on amounts
reimbursable in any Anniversary Year; and
(xiii) for
application as part of Pool 2 Excess Interest for such Distribution Date,
as
provided in subsection (e) of this Section, any Interest Remittance Amount
for
Pool 2 remaining after application pursuant to clauses (i) through (xii)
above.
(d) On
each
Distribution Date (or with respect to clauses (i)(A)(1), (i)(B)(1), (ii)(A)
and
(ii)(B) below, the related Swap Payment Date), the Trustee shall distribute
the
Principal Distribution Amount with respect to each Mortgage Pool as
follows:
(i) for
each
Distribution Date occurring (a) before the Stepdown Date or (b) on or after
the
Stepdown Date and for which a Trigger Event is in effect, the Trustee shall
make
the following distributions, concurrently:
(A) For
Pool 1: Until
the
aggregate Class Principal Balance of the Group 1 Certificates and the LIBOR
Certificates equals the Aggregate Pool Balance for such Distribution Date
minus
the
Targeted Overcollateralization Amount for such Distribution Date, in the
following order of priority:
126
(1)
for
deposit into the Swap Account, an amount equal to the lesser
of (A)
the amount of any Net Swap Payment or Swap Termination Payment (to the extent
not due to a Swap Counterparty Trigger Event) owed to the Swap Counterparty,
to
the extent not paid pursuant to Sections 6.05(b)(i), 6.05(c)(i) or
6.05(d)(i)(B)(1), and (B) the Principal Remittance Amount for Pool 1 for such
Distribution Date;
(2)
to
the
Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4 and Class 1-A5 Certificates,
in
the following order of priority:
(a) to
the
Class 1-A5 Certificates, the Class 1-A5 Priority Amount for such Distribution
Date, in reduction of their Class Principal Balance, until the Class Principal
Balance of such Class has been reduced to zero; and
(b) to
the
Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4 and Class 1-A5 Certificates,
sequentially in that order, in reduction of their respective Class Principal
Balances, until the Class Principal Balance of each such Class has been reduced
to zero;
(3)
to
the
Group 2 Certificates, in reduction of their respective Class Principal Balances,
after giving effect to distributions pursuant to Section 6.05(d)(i)(B)(2) below,
in accordance with the Senior Priority for the Group 2 Certificates, until
the
Class Principal Balance of each Class of Group 2 Certificates has been reduced
to zero;
(4)
to
the
Class M-1 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(5)
to
the
Class M-2 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(6)
to
the
Class M-3 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(7)
to
the
Class M-4 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
127
(8)
to
the
Class B-1 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(9)
to
the
Class B-2 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero; and
(10) any
remaining amount, for application as part of Excess Cashflow pursuant to Section
6.05(e);
(B) For
Pool 2: Until
the
aggregate Class Principal Balance of the Group 1 Certificates and the LIBOR
Certificates equals the Aggregate Pool Balance for such Distribution Date
minus
the
Targeted Overcollateralization Amount for such Distribution Date, in the
following order of priority:
(1)
for
deposit into the Swap Account, an amount equal to the lesser
of (A)
the amount of any Net Swap Payment or Swap Termination Payment (to the extent
not due to a Swap Counterparty Trigger Event) owed to the Swap Counterparty
and
(B) the Principal Remittance Amount for Pool 2 for such Distribution Date,
to
the extent not paid pursuant to Sections 6.05(b)(i) or 6.05(c)(i);
(2)
to
the
Class 2-A1, Class 2-A2, Class 2-A3 and Class 2-A4 Certificates, concurrently,
as
follows:
(a) the
Group
2 Senior Allocation Percentage to the Class 2-A1, Class 2-A2 and Class 2-A3
Certificates, sequentially in that order, in reduction of their respective
Class
Principal Balances, until the Class Principal Balance of each such Class has
been reduced to zero; and
(b) 100%
minus
the
Group 2 Senior Allocation Percentage to the Class 2-A4 Certificates, in
reduction of their Class Principal Balance, until the Class Principal Balance
of
such Class has been reduced to zero;
(3)
to
the
Group 1 Certificates, in reduction of their respective Class Principal Balances,
in accordance with the Senior Priority for the Group 1 Certificates, after
giving effect to distributions pursuant to Section 6.05(d)(i)(A)(2) above,
until
the Class Principal Balance of each Class of Group 1 Certificates has been
reduced to zero;
(4) to
the
Class M-1 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
128
(5)
to
the
Class M-2 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(6)
to
the
Class M-3 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(7)
to
the
Class M-4 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(8)
to
the
Class B-1 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(9)
to
the
Class B-2 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero; and
(10) any
remaining amount, for application as part of Excess Cashflow pursuant to Section
6.05(e); and
(ii) for
each
Distribution Date occurring on or after the Stepdown Date and for which a
Trigger Event is not in effect, as follows:
(A) for
Pool
2, for deposit into the Swap Account, an amount equal to the lesser
of (1)
the amount of any Net Swap Payment or Swap Termination Payment (to the extent
not due to a Swap Counterparty Trigger Event) owed to the Swap Counterparty,
to
the extent not paid pursuant to Sections 6.05(b)(i) or 6.05(c)(i), and (2)
the
Principal Remittance Amount for Pool 2 for such Distribution Date;
(B) for
Pool
1, for deposit into the Swap Account, an amount equal to the lesser
of (1)
the amount of any Net Swap Payment or Swap Termination Payment (to the extent
not due to a Swap Counterparty Trigger Event) owed to the Swap Counterparty,
to
the extent not paid pursuant to Sections 6.05(b)(i), 6.05(c)(i) or
6.05(d)(ii)(A), and (2) the Principal Remittance Amount for Pool 1 for such
Distribution Date;
(C) concurrently,
to the
Group 1 Certificates, as a group, the Group 2 Certificates, as a group, and
the
Subordinate Certificates, in proportion to the respective Class Principal
Balances of such Certificates, in reduction of their respective Class Principal
Balances, until the Class Principal Balance of each such Class has been reduced
to zero; provided
that
distributions between the Group 1 Certificates and the Group 2 Certificates
shall be allocated on the basis of the Group 1 Senior Principal Distribution
Percentage and the Group 2 Senior Principal Distribution Percentage,
respectively, and shall be made in accordance with the related Senior Priority;
and
129
(D) any
remaining amount, for application as part of Excess Cashflow pursuant to Section
6.05(e).
(e) On
each
Distribution Date, the Trustee shall distribute the Excess Cashflow, together
with (to the extent specified below) amounts received in respect of the Cap
Agreement for such Distribution Date and amounts on deposit in the Reserve
Fund,
in the following order of priority:
(i) to
the
extent of Excess Interest for such Distribution Date, for each Distribution
Date
occurring (a) before the Stepdown Date or (b) on or after the Stepdown Date
and
for which a Trigger Event is in effect, until (after giving effect to
distributions of principal made pursuant to Section 6.05(d) hereof for such
Distribution Date) the aggregate Class Principal Balance of the Group 1
Certificates and the LIBOR Certificates equals the Aggregate Pool Balance for
such Distribution Date minus
the
Targeted Overcollateralization Amount for such Distribution Date, in the
following order of priority:
(A) concurrently,
to the
Group 1 Certificates, as a group, and the Group 2 Certificates, as a group,
in
proportion to the respective Class Principal Balances of such Certificates,
in
reduction of their respective Class Principal Balances, until the Class
Principal Balance of each such Class has been reduced to zero; provided
that
distributions between the Group 1 Certificates and the Group 2 Certificates
shall be allocated on the basis of the Group 1 Senior Principal Distribution
Percentage and the Group 2 Senior Principal Distribution Percentage,
respectively, and shall be made in accordance with the related Senior
Priority;
(B) to
the
Class M-1 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(C) to
the
Class M-2 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(D) to
the
Class M-3 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(E) to
the
Class M-4 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
(F) to
the
Class B-1 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero; and
(G) to
the
Class B-2 Certificates, in reduction of their Class Principal Balance, until
the
Class Principal Balance of such Class has been reduced to zero;
130
(ii) to
the
extent of Excess Interest for such Distribution Date, for each Distribution
Date
occurring on or after the Stepdown Date and for which a Trigger Event is not
in
effect, until (after giving effect to distributions of principal made pursuant
to Section 6.05(d) hereof for such Distribution Date) the aggregate Class
Principal Balance of the Group 1 Certificates and the LIBOR Certificates equals
the Aggregate Pool Balance for such Distribution Date minus
the
Targeted Overcollateralization Amount for such Distribution Date, in the
following order of priority:
concurrently,
to the
Group 1 Certificates, as a group, the Group 2 Certificates, as a group, and
the
Subordinate Certificates, in proportion to the respective Class Principal
Balances of such Certificates, in reduction of their respective Class Principal
Balances, until the Class Principal Balance of each such Class has been reduced
to zero; provided
that
distributions between the Group 1 Certificates and the Group 2 Certificates
shall be allocated on the basis of the Group 1 Senior Principal Distribution
Percentage and the Group 2 Senior Principal Distribution Percentage,
respectively, and shall be made in accordance with the related Senior
Priority;
(iii) to
the
extent of any amounts received in respect of the Cap Agreement for such
Distribution Date, to the Reserve Fund, the amount of any Carryforward Interest
remaining unpaid, and then from the Reserve Fund to the Group 1 Certificates
and
the LIBOR Certificates, for application pursuant to the priorities specified
in
Sections 6.05(b) and (c), any such unpaid Carryforward Interest for each such
Class for such Distribution Date;
(iv) to
the
extent of any remaining amounts received in respect of the Cap Agreement for
such Distribution Date, to the Reserve Fund, the amount of any Loss Amount
for
such Distribution Date, and then from the Reserve Fund to the Group 1
Certificates and the LIBOR Certificates, in reduction of their respective Class
Principal Balances, for application pursuant to the priorities specified in
clause (i) or (ii), as applicable, of this Section 6.05(e), such Loss Amount
for
such Distribution Date;
(v) to
the
extent of any remaining amounts received in respect of the Cap Agreement for
such Distribution Date, to the Reserve Fund, the amount of any Basis Risk
Payment, and then from the Reserve Fund, together with any remaining Excess
Interest for such Distribution Date, to the Group 1 Certificates and the LIBOR
Certificates, for application pursuant to the priorities specified in Sections
6.05(b) and (c), any Basis Risk Shortfall and Unpaid Basis Risk Shortfall for
such Class for such Distribution Date;
(vi) to
the
extent of any remaining amounts received in respect of the Cap Agreement for
such Distribution Date, to the Reserve Fund, the amount of any Deferred
Principal Amount, and then from the Reserve Fund, together with any remaining
Excess Interest for such Distribution Date, to the Subordinate Certificates,
in
order of seniority, any Deferred Principal Amount for each such Class for such
Distribution Date;
131
(vii) on
the
Distribution Date in July 2014 (or the final Distribution Date, if sooner),
$100.00 to the Class P Certificates in reduction of the Class P Principal
Amount;
(viii) to
pay
any up-front fee payable to any substitute Cap Provider as provided in Section
6.13(d);
(ix) to
the
Swap Account (limited, with respect to any amounts on deposit in the Reserve
Fund, to amounts in excess of the Reserve Fund Requirement for such Distribution
Date after giving effect to any distributions pursuant to clauses (i) through
(viii) above on such Distribution Date), any Swap Termination Payment due to
a
Swap Counterparty Trigger Event;
(x) to
the
Swap Account, the sum of (A) any amounts remaining in the Reserve Fund after
giving effect to any distributions pursuant to clauses (i) through (ix) above
on
such Distribution Date, in excess of the Reserve Fund Requirement for such
Distribution Date, and (B) any amounts payable under the Cap Agreement and
distributable to the Class X Certificates under Section 6.12(b), for application
pursuant to Section 6.05(f)(x) below;
(xi) to
the
Swap Account, the Class X Distributable Amount for such Distribution Date,
for
application pursuant to Section 6.05(f)(x) below; and
(xii) to
the
Class RL Certificates, any remaining Excess Cashflow.
(f) On
each
Distribution Date (or, with respect to clauses (i) and (ii) below, on the
related Swap Payment Date), the Trustee shall distribute the Swap Amount,
together with any amounts deposited into the Swap Account pursuant to Sections
6.05(e)(ix) and (x) for such date as follows:
(i) to
the
Swap Counterparty, any Net Swap Payment owed to the Swap Counterparty pursuant
to the Swap Agreement for such Swap Payment Date;
(ii) to
the
Swap Counterparty, any unpaid Swap Termination Payment not due to a Swap
Counterparty Trigger Event owed to the Swap Counterparty pursuant to the Swap
Agreement for such Swap Payment Date;
(iii) to
the
Group 1 Certificates and the LIBOR Certificates, for application pursuant to
the
priorities specified in Sections 6.05(b) and (c), any unpaid Carryforward
Interest for each such Class for such Distribution Date;
(iv) to
the
Group 1 Certificates and the LIBOR Certificates, in reduction of their
respective Class Principal Balances, for application pursuant to the priorities
specified in Section 6.05(e)(i) or (ii), as applicable, any Loss Amount not
distributed pursuant to Section 6.05(e)(iv) for such Distribution
Date;
132
(v) to
the
Group 1 Certificates and the LIBOR Certificates, any unpaid Basis Risk
Shortfalls and unpaid Unpaid Basis Risk Shortfalls for each such Class and
for
such Distribution Date, for application pursuant to the priorities specified
in
Sections 6.05(b) and (c);
(vi) to
the
Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class B-1 and Class B-2
Certificates, sequentially in that order, any Deferred Principal Amount for
each
such Class for such Distribution Date;
(vii) if
applicable, to the Swap Termination Receipts Account for application to the
purchase of a replacement swap agreement pursuant to Section 6.16;
(viii) to
the
Reserve Fund, any amounts necessary to achieve the Reserve Fund
Requirement;
(ix) to
the
Swap Counterparty, any unpaid Swap Termination Payment due to a Swap
Counterparty Trigger Event owed to the Swap Counterparty pursuant to the Swap
Agreement;
(x) to
the
Class X Certificates, any amount deposited into the Swap Account pursuant to
Sections 6.05(e)(x) or (xi) and any remaining Swap Amount; and
(xi) on
the
first Distribution Date on which the Class Principal Balance of each Class
of
Certificates has been reduced to zero, to the Class X Certificates, all amounts
remaining in the Swap Account.
(g) On
each
Distribution Date, the Trustee shall distribute from amounts remaining in the
Reserve Fund after application pursuant to Section 6.05(e) the amount of any
Loss Amount not distributed pursuant to Section 6.05(e)(iv) or Section
6.05(f)(iv), to the Group 1 Certificates and the LIBOR Certificates, in
reduction of their respective Class Principal Balances, for application pursuant
to the priorities specified in clause (i) or (ii), as applicable, of Section
6.05(e).
(h) On
each
Distribution Date, the Trustee shall distribute the Class P Distribution Amount
for such Distribution Date to the Class P Certificates.
(i) On
the
Termination Date, the Trustee shall distribute to each Class of Certificates
the
amounts set forth in Section 10.02 hereof
in
the following order of priority:
(i) The
Trustee shall distribute the Class A-IO Termination Amount to the Class A-IO
Certificates if the Trust Fund is terminated pursuant to Section
10.02(a);
(ii) The
Trustee shall distribute the amount of the Termination Price allocable to
interest in the following order of priority:
133
(A) for
deposit into the Swap Account, the amount of any Swap Termination Payment owed
to the Swap Counterparty as a result of an optional purchase of the Mortgage
Loans under Section 10.02(a);
(B) to
the
Class A-IO Certificates, any accrued and unpaid interest on the outstanding
Class Notional Balance thereof;
(C) concurrently,
to the
Group 1 Certificates and the Group 2 Certificates, in proportion to the
respective Class Principal Balances of such Certificates, any accrued and unpaid
interest on the respective outstanding Class Principal Balances thereof;
(D) to
the
Class M-1 Certificates, any accrued and unpaid interest on the outstanding
Class
Principal Balance thereof;
(E)
to the
Class M-2 Certificates, any accrued and unpaid interest on the outstanding
Class
Principal Balance thereof;
(F) to
the
Class M-3 Certificates, any accrued and unpaid interest on the outstanding
Class
Principal Balance thereof;
(G) to
the
Class M-4 Certificates, any accrued and unpaid interest on the outstanding
Class
Principal Balance thereof;
(H) to
the
Class B-1 Certificates, any accrued and unpaid interest on the outstanding
Class
Principal Balance thereof;
(I) to
the
Class B-2 Certificates, any accrued and unpaid interest on the outstanding
Class
Principal Balance thereof; and
(J) any
remaining amount, for application as part of Excess Cashflow pursuant to Section
6.05(e);
(iii) The
Trustee shall distribute the amount of the Termination Price, as applicable,
allocable to principal in the following order of priority:
(A) for
deposit into the Swap Account, the amount of any Swap Termination Payment owed
to the Swap Counterparty as a result of an optional purchase of the Mortgage
Loans under Section 10.02(a), to the extent not paid pursuant to clause (ii)(A)
of this Section 6.05(i);
(B) to
the
Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4, Class 1-A5, Class 2-A1, Class
2-A2, Class 2-A3 and Class 2-A4 Certificates, in proportion to their respective
Class Principal Balances, until the Class Principal Balance of each such Class
has been reduced to zero;
(C) to
the
Class M-1 Certificates, until the Class Principal Balance of such Class has
been
reduced to zero;
134
(D)
to the
Class M-2 Certificates, until the Class Principal Balance of such Class has
been
reduced to zero;
(E) to
the
Class M-3 Certificates, until the Class Principal Balance of such Class has
been
reduced to zero;
(F) to
the
Class M-4 Certificates, until the Class Principal Balance of such Class has
been
reduced to zero;
(G) to
the
Class B-1 Certificates, until the Class Principal Balance of such Class has
been
reduced to zero;
(H) to
the
Class B-2 Certificates, until the Class Principal Balance of such Class has
been
reduced to zero; and
(I) any
remaining amount, for application as part of Excess Cashflow pursuant to Section
6.05(e).
Section
6.06. Disbursement
of Funds.
All
distributions shall be made pursuant to Section 6.05 by wire transfer of
immediately available funds to the account of the Person entitled thereto at
a
bank or other entity having appropriate facilities therefor if such Person
shall
have so notified the Trustee in writing at least five Business Days prior to
the
Record Date immediately prior to such Distribution Date; provided
that, a
Certificateholder shall only be entitled to receive distributions by wire
transfer if such Certificateholder is the registered Holder of Certificates
having an initial aggregate principal amount equal to or in excess of $5,000,000
or a Percentage Interest equal to or in excess of 25%; and in all other cases
by
check mailed to each such Certificateholder at such Holder’s address appearing
in the Certificate Register.
Section
6.07. Allocation
of Losses.
(a) On
each
Distribution Date, the Class Principal Balance of each Class of Subordinate
Certificates shall be reduced by the amount of any Applied Loss Amount for
such
Distribution Date, in the following order of priority:
(i) in
reduction of the Class Principal Balance of the Class B-2 Certificates, until
the Class Principal Balance thereof has been reduced to zero;
(ii) in
reduction of the Class Principal Balance of the Class B-1 Certificates, until
the Class Principal Balance thereof has been reduced to zero;
(iii) in
reduction of the Class Principal Balance of the Class M-4 Certificates, until
the Class Principal Balance thereof has been reduced to zero;
(iv) in
reduction of the Class Principal Balance of the Class M-3 Certificates, until
the Class Principal Balance thereof has been reduced to zero;
135
(v) in
reduction of the Class Principal Balance of the Class M-2 Certificates, until
the Class Principal Balance thereof has been reduced to zero; and
(vi) in
reduction of the Class Principal Balance of the Class M-1 Certificates, until
the Class Principal Balance thereof has been reduced to zero.
(b) Any
Realized Losses so allocated to a Class of Certificates shall be allocated
among
the Certificates of such Class in proportion to their respective principal
balances. Any allocation of an Applied Loss Amount pursuant to this Section
shall be accomplished by reducing the Class Principal Balance of the applicable
Class and the principal balance of each related Certificate on the applicable
Distribution Date.
Section
6.08. Reports
to Certificateholders.
(a) On
each
Distribution Date, concurrently with the distribution to the Certificateholders,
the Trustee shall furnish to the Certificateholders, the Seller, the Depositor,
the Swap Counterparty and each Rating Agency, a report, based solely on
information provided to the Trustee by the Master Servicer and in the Master
Servicer’s Monthly Report, containing the following information:
(i) the
amount of the distribution on such Distribution Date with respect to each Class
of Certificates;
(ii) the
amount of such distributions allocable to principal, separately identifying
the
aggregate amount of any prepayments or other unscheduled recoveries of principal
included therein;
(iii) the
amount of such distributions allocable to interest;
(iv) the
Class
Principal Balance (or Class Notional Balance) for each Class of Certificates
as
of such Distribution Date together with the principal amount or notional amount
of the Certificates of the related Class (based on a Certificate in the original
principal amount or notional amount of $1,000) then outstanding, in each case
after giving effect to any payment of principal on such Distribution
Date;
(v) the
level
of LIBOR and the Interest Rates applicable to the LIBOR Certificates for such
Distribution Date;
(vi) if
applicable, a statement that interest distributable on one or more Classes
of
Certificates on such Distribution Date represents interest accrued on such
Classes at a rate equal to the Pool 1 Available Funds Cap, the Pool 2 Available
Funds Cap, the Subordinate Available Funds Cap, the A-IO(1) Component Net Funds
Cap or the A-IO(2) Component Net Funds Cap, as applicable;
(vii) the
Aggregate Pool Balance, the Pool Balance of Pool 1 and the Pool Balance of
Pool
2 as of such Distribution Date;
(viii) the
Overcollateralization Amount for such Distribution Date;
136
(ix) by
Mortgage Pool and in the aggregate, the amount of any Delinquency Advances
for
such Distribution Date, and the amount of any Outstanding Advances in respect
of
Delinquency Advances remaining after such Distribution Date;
(x) the
amount of any Purchase Prices deposited into the Collection
Account;
(xi) by
Mortgage Pool and in the aggregate, the amount of current and cumulative
Realized Losses on the Mortgage Loans;
(xii) by
Mortgage Pool and in the aggregate, the number of Mortgagor
bankruptcies;
(xiii) by
Mortgage Pool and in the aggregate, the number of Mortgage Loans and the
aggregate Principal Balance thereof that were repurchased by the Seller or
Depositor pursuant Section 2.03 hereof during the one-month period immediately
preceding the related Determination Date;
(xiv) the
amount of any Realized Losses applied to any Class of Certificates on such
Distribution Date;
(xv) the
amount of any Basis Risk Shortfall and Unpaid Basis Risk Shortfall with respect
to any Class of Certificates;
(xvi) the
amount of any shortfalls in distributions of interest with respect to each
Class
of Certificates on such Distribution Date and the cumulative amount of any
unreimbursed shortfalls in distributions of interest from prior Distribution
Dates;
(xvii) the
amount of Servicing Fees, the Master Servicing Fee, the Trustee Fee, the
Custodian Fee and the Pool PMI Insurance Premium, if any, paid with respect
to
such Distribution Date;
(xviii) the
amount of any payments received under the Cap Agreement; and
(xix) the
amount of any Net Swap Payment to the Supplemental Interest Trust made pursuant
to Section 6.14, any Net Swap Payment to the Swap Counterparty made pursuant
to
Section 6.14, any Swap Termination Payment to the Supplemental Interest Trust
made pursuant to Section 6.14 and any Swap Termination Payment to the Swap
Counterparty made pursuant to Section 6.14.
Items
(i)
through (iii) above shall, with respect to the Certificates be presented on
the
basis of a Certificate having an original $1,000 denomination and on an
aggregate basis. The Trustee shall make the information set forth above
available each month to Certificateholders and the parties to this Agreement
via
the Trustee’s internet website initially located at xxx.xxxxxx.xxx/xxx. The
Trustee shall provide such information by mail to any Certificateholder that
requests paper copies. Each calendar year following any year during which the
Certificates are outstanding, the Trustee shall furnish a report to each
Certificateholder of record at any time during such calendar year as to the
aggregate of amounts reported pursuant to items (i), (ii) and (iii) above with
respect to the related Certificates for such calendar year.
137
(b) In
addition, on each Distribution Date the Trustee will distribute to each
Certificateholder (which shall be the Depository Trust Company as long as the
Certificates are in book-entry form), the following information (based upon
information provided to the Trustee by the Master Servicer) as of the close
of
business on the last business day of the prior calendar month:
(i) the
total
number of Mortgage Loans and the aggregate principal balances thereof, together
with the number and aggregate principal balances of Mortgage Loans (a) 30-59
days delinquent, (b) 60-89 days delinquent and (c) 90 or more days delinquent
(using the OTS method of calculation);
(ii) the
number and aggregate principal balance of Mortgage Loans in foreclosure
proceedings (and whether any such Mortgage Loans are also included in any of
the
statistics described in the foregoing clause (i)); and
(iii) the
number and aggregate principal balance of all Mortgage Loans relating to REO
Properties (and whether any such Mortgage Loans are also included in any of
the
statistics described in the foregoing clauses (i) and (ii)).
(c) Annually,
in January of each year, the Trustee shall furnish to each Person that was
a
Certificateholder during the prior calendar year a statement showing the
aggregate interest and the aggregate principal received by such Person with
respect to the Certificates during the prior calendar year, together with any
standard federal income tax reporting form for such information, and information
furnished by the Trustee upon request pursuant to Section 6049(d)(7)(C) of
the
Code and the regulations promulgated thereunder to assist the Certificateholders
in computing their market discount.
Section
6.09. Presentation
of Certificates.
Upon
receipt of notice of the final Distribution Date with respect to any Class,
the
Trustee will notify each affected Certificateholder that the next Distribution
Date will be the final Distribution Date. In the event that a Certificateholder
fails to deliver its Certificate(s) for cancellation on the final Distribution
Date, by its purchase of a Certificate it agrees to indemnify the Depositor,
the
Master Servicer, the Trustee and the Trust Fund against all claims with respect
to such Certificate arising following such Distribution Date. Claims against
the
Trust for payment on such Certificate shall be void unless made within three
years from the Termination Date.
Section
6.10. Compensating
Interest.
Prior
to
each Distribution Date, the Master Servicer shall deposit into the Certificate
Distribution Account from its own funds, but not in excess of the amount of
the
Master Servicing Fee for such Distribution Date, the amount of any Compensating
Interest for such Distribution Date.
138
Section
6.11. Certain
Provisions With Respect to the Cap Agreement.
(a) If
the
Master Servicer or the Trustee shall not have received a payment with respect
to
the Cap Agreement by the date on which such payment was due and payable pursuant
to the terms thereof, the Trustee shall make demand upon the Cap Provider,
as
applicable, for immediate payment, and may, and at the direction of a majority
(by Voting Rights) of the Certificateholders shall, take any available legal
action, including the prosecution of any claims in connection therewith. The
Depositor shall cooperate with the Trustee in connection with any such demand
or
action to the extent reasonably requested by the Trustee. The reasonable legal
fees and expenses incurred by the Trustee in connection with the prosecution
of
any such legal action shall be reimbursable to the Trustee from the Trust
Fund.
(b) Funds
or
collateral required to be held pursuant to the Cap Credit Support Annex shall
be
deposited into the Cap Collateral Account. Funds posted by the Cap Provider
(or
its credit support provider) in the Cap Collateral Account shall be invested
in
Eligible Investments at the written direction of the Cap Provider. Any interest
earnings on such amounts shall be remitted to the Cap Provider pursuant to
the
terms of the Cap Credit Support Annex. For federal income tax purposes, the
Cap
Provider shall be considered owner of funds deposited in the Cap Collateral
Account. The Trustee shall not be liable for any losses incurred on such
investments. In the absence of written instructions from the Cap Provider (or
its credit support provider) as to investment of funds on deposit in the Cap
Collateral Account, such funds shall remain uninvested. On any Distribution
Date
as to which a shortfall exists with respect to Interest Rate Cap Amounts owed
by
the Cap Counterparty as a result of its failure to make payments pursuant to
the
Cap Agreement, amounts necessary to cover such shortfall shall be removed from
the Collateral Account, remitted to the Interest Rate Cap Account and
distributed as all or a portion of such Interest Rate Cap Amount pursuant to
Section 6.05(e). Any amounts on deposit in the Cap Collateral Account required
to be returned to the Cap Counterparty (or its credit support provider) as
a
result of (i) the termination of the Cap Agreement, (ii) the procurement of
a
guarantor or (iii) the reinstatement of required ratings shall be released
directly to the Cap Provider, pursuant to the terms of the Cap Credit Support
Annex.
(c) Upon
termination of the Trust Fund, any amounts remaining in the Cap Collateral
Account shall be distributed as required pursuant to the terms of the Cap Credit
Support Annex.
(d) In
the
event that the Cap Provider fails to perform any of its obligations under the
Cap Agreement (including, without limitation, its obligations to make any
payment or transfer collateral), or breaches any of its representations and
warranties under the Cap Agreement, or in the event that an Event of Default,
Termination Event, or Additional Termination Event occurs (as such terms are
defined in the Cap Agreement), the Trustee, on behalf of the Supplemental
Interest Trust, shall (upon a Responsible Officer of the Trustee’s receiving
written notice or having actual knowledge of the occurrence thereof), as soon
as
practicable following such failure, breach or occurrence, notify the Cap
Provider and give any notice of such failure and make any demand for payment
pursuant to the Cap Agreement. In the event that the Cap Provider’s obligations
under the Cap Agreement are at any time guaranteed by a third party, then to
the
extent that the Cap Provider fails to make any payment or delivery required
under terms of the Cap Agreement, the Trustee, on behalf of the Supplemental
Interest Trust, shall (upon a Responsible Officer of the Trustee’s receiving
written notice or having actual knowledge of the occurrence thereof), as soon
as
practicable following such failure, demand that such guarantor make any and
all
payments then required to be made by the applicable guarantor.
139
Section
6.12. The
Reserve Fund.
(a) On
the
Closing Date, the Trustee shall establish and maintain, in its name, in trust
for the benefit of the holders of the Group 1 Certificates and the LIBOR
Certificates, the Reserve Fund into which the Sponsor shall deposit $1,000.
In
addition, the Trustee shall hold the Cap Agreement as an asset in the Reserve
Fund. The Reserve Fund shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled
with,
any other moneys, including, without limitation, other moneys of the Trustee
held pursuant to this Agreement. The Reserve Fund shall be an asset of the
Supplemental Interest Trust created pursuant to Section 6.15 of this
Agreement.
(b) On
each
Distribution Date on which there is a payment received by the Trustee under
the
Cap Agreement that is based on a notional amount in excess of the aggregate
Class Principal Balance of the Group 1 Certificates and the LIBOR Certificates
(such amount, the “Class X Excess Cap Amount”), the
Trustee shall not treat such payments as amounts on deposit in the Reserve
Fund
for purposes of determining the Reserve Fund Requirement for any Distribution
Date. Any such Class X Excess Cap Amount shall not be an asset of the Trust
Fund
and, instead, shall be paid
into
and distributed out of a separate trust created by this Agreement for the
benefit of the Class X Certificateholders, and the Trustee shall distribute
such
amount to the Class
X
Certificateholders pursuant
to Section 6.05(f)(x).
On
each
Distribution Date the Trustee shall deposit into and make withdrawals from
the
Reserve Fund to make distributions in the order of priority and to the extent
specified in Section 6.05(e) and (g) of this Agreement of the sum of (without
duplication) (i) any payments made by the Cap Provider to the Trust Fund for
such Distribution Date with respect to the Cap Agreement, (ii) any amounts
then
on deposit in the Reserve Fund, including any earnings thereon, in respect
of
the Cap Agreement, (iii) any amounts in respect of Basis Risk Shortfalls and
Unpaid Basis Risk Shortfalls, (iv) any amounts in respect of Loss Amounts,
(v)
any amounts in respect of Deferred Principal Amounts and (vi) any amounts then
on deposit in the Reserve Fund, including any earnings thereon, in respect
of
payments received from the Swap Account pursuant to Section 6.05(f)
(provided
that any
distributions made from the Reserve Fund pursuant to Sections 6.05(e) and (g)
shall be deemed to be made first
from any
amounts received under the Swap Agreement and deposited into the Reserve Fund
from the Swap Account pursuant to Section 6.05(f) and second
from any
remaining amounts then on deposit in the Reserve Fund). On each Distribution
Date, any amounts that the Trustee is not required to distribute from the
Reserve Fund pursuant to Section 6.05(e) and (g) shall remain on deposit in
the
Reserve Fund and shall be invested as provided in this Agreement. All such
deposits into and withdrawals from the Reserve Fund shall be based upon
information received from the Master Servicer.
(c) The
Class
X Certificates shall evidence ownership of the Reserve Fund for federal income
tax purposes.
140
Section
6.13. Substitution
of Cap Providers.
(a) The
Trustee, on behalf of the Trust Fund, shall maintain in effect Cap Agreements,
on substantially the same terms and conditions as the related Cap Agreement
in
effect on the Closing Date, with Cap Providers or substitute Cap Providers
(1)
whose long-term senior unsecured debt obligations are rated at least "Aa3"
by
Xxxxx'x and at least "AA-" by S&P and whose short-term unsecured debt
obligations are rated at least "A-1" by S&P or (2) with respect to any such
substitute Cap Provider not rated at least "Aa3" by Xxxxx'x and at least "AA-"
by S&P, a Cap Provider whose obligations in respect of any Cap Agreement are
absolutely and unconditionally guaranteed by an Affiliate of such Cap Provider,
so long as such Affiliate's long-term senior unsecured debt obligations are
rated at least "A1" by Xxxxx'x and so long as such Affiliate's short-term
unsecured debt obligations are rated at least "A-1" by S&P.
(b) At
any
time when the Trustee, on behalf of the Trust Fund, is permitted to terminate
a
Cap Agreement pursuant to the terms of such Cap Agreement (whether due to the
occurrence of an event of default, a termination event or otherwise), the
Trustee, on behalf of the Trust Fund, shall terminate such Cap Agreement (i)
subject to satisfaction of the Ratings Requirement or (ii) at the written
direction of the Rating Agencies; provided
that
prior to or simultaneously with any termination of the Cap Agreement by the
Trustee as a result of any downgrade of the ratings of the Cap Provider or
the
Credit Support Provider, the Trustee, on behalf of the Trust Fund, shall have
entered into a substitute Cap Agreement in accordance with written notice from
the Depositor provided pursuant to Section 6.13(c).
(c) In
the
event of an early termination of a Cap Agreement, the Trustee, on behalf of
the
Trust Fund, shall enter into a substitute Cap Agreement (i) within 20 days
after
the termination of such existing Cap Agreement or (ii) prior to or
simultaneously with the termination of the existing Cap Agreement as described
in the proviso to Section 6.13(b), with a substitute counterparty meeting the
eligibility requirements set forth in Section 6.13(a) hereof. The Depositor,
on
behalf of the Trust Fund, shall send written notice to the Trustee and the
Rating Agencies as promptly as practicable prior to termination of the existing
Cap Agreement, identifying a proposed counterparty with respect to the
substitute Cap Agreement. Any proposed substitute counterparty shall be subject
to the prior written approval of the Rating Agencies.
(d) Any
up-front fee payable to a replacement Cap Provider or other cost or expense
associated with the Trustee entering into a new Cap Agreement pursuant to this
Section 6.13 shall be payable by or on behalf of the Trust Fund from any payment
received under the terminated Cap Agreement; provided,
however,
if such
amount received is not sufficient to pay such up-front fee, the difference
shall
be paid pursuant to Section 6.05(e)(viii).
(e) Promptly
upon termination of a Cap Agreement, the Trustee shall mail notice thereof
by
first-class mail, postage prepaid, to each Rating Agency and the
Certificateholders at their last addresses appearing upon the Certificate
Register.
Section
6.14. Supplemental
Interest Trust.
(a) A
separate trust is hereby established (the “Supplemental Interest Trust”), the
corpus of which shall be held by the Trustee, in trust, for the benefit of
the
Certificateholders. The Trustee, as trustee of the Supplemental Interest Trust,
shall establish an account (the “Swap Account”), into which the Sponsor shall
initially deposit $1,000. The Swap Account shall be an Eligible Account, and
funds on deposit therein shall be held separate and apart from, and shall not
be
commingled with, any other monies, including, without limitation, other monies
of the Trustee held pursuant to this Agreement.
141
(b) The
Reserve Fund established under Section 6.12 and its assets (including, without
limitation, the Cap Agreement) shall be an asset of the Supplemental Interest
Trust.
(c) In
addition, on the Closing Date, the Trustee, on behalf of the Supplemental
Interest Trust, shall establish an account (the “Swap Collateral Account”) into
which funds shall be deposited pursuant to Section 6.14(f). The Swap Collateral
Account shall be an Eligible Account, and funds on deposit therein shall be
held
separate and apart from, and shall not be commingled with, any other monies,
including, without limitation, other monies of the Trustee held pursuant to
this
Agreement.
(d) The
Trustee shall deposit into the Swap Account any Net Swap Payment required
pursuant to Sections 6.05(b), (c) and (e), any Swap Termination Payment required
pursuant to Sections 6.05(b), (c), (e) and (i) and any amounts received from
the
Swap Counterparty under the Swap Agreement, and shall distribute from the Swap
Account any Net Swap Payment required pursuant to Section 6.05(f)(i) or Swap
Termination Payment required pursuant to Sections 6.05(f)(ii) or (ix), as
applicable.
(e) Funds
in
the Swap Account shall be invested in Eligible Investments. Any earnings on
such
amounts shall be distributed on each Distribution Date pursuant to Section
6.05(f). The Class X Certificates shall evidence ownership of the Swap Account
for federal income tax purposes and the Holder thereof shall direct the Trustee,
in writing, as to investment of amounts on deposit therein. The Sponsor shall
be
liable for any losses incurred on such investments. In the absence of written
instructions from the Class X Certificateholders as to investment of funds
on
deposit in the Swap Account, such funds shall be invested in the Class A First
American Government Obligations Fund or comparable investment vehicle. Any
amounts on deposit in the Swap Account in excess of the Swap Amount on any
Distribution Date shall be held for distribution pursuant to Section 6.05(f),
on
the following Distribution Date.
(f) Funds
or
collateral required to be held pursuant to the Swap Credit Support Annex shall
be deposited into the Swap Collateral Account. Funds posted by the Swap
Counterparty (or its credit support provider) in the Swap Collateral Account
shall be invested in Eligible Investments at the written direction of the Swap
Counterparty. Any interest earnings on such amounts shall be remitted to the
Swap Counterparty pursuant to the terms of the Swap Credit Support Annex. For
federal income tax purposes, the Swap Counterparty shall be considered owner
of
funds deposited in the Swap Collateral Account. The Trustee shall not be liable
for any losses incurred on such investments. In the absence of written
instructions from the Swap Counterparty (or its credit support provider) as
to
investment of funds on deposit in the Swap Collateral Account, such funds shall
remain uninvested. On the first Distribution Date immediately following any
Swap
Payment Date as to which a shortfall exists with respect to a Net Swap Payment
or a Swap Termination Payment owed by the Swap Counterparty as a result of
its
failure to make payments pursuant to the Swap Agreement, amounts necessary
to
cover such shortfall shall be removed from the Swap Collateral Account, remitted
to the Swap Account and distributed as all or a portion of such Net Swap Payment
or Swap Termination Payment pursuant to Section 6.05(f). Any amounts on deposit
in the Swap Collateral Account required to be returned to the Swap Counterparty
(or its credit support provider) as a result of (i) the termination of the
Swap
Agreement, (ii) the procurement of a guarantor, (iii) the reinstatement of
required ratings or (iv) otherwise pursuant to the Swap Agreement, shall be
released directly to the Swap Counterparty, pursuant to the terms of the Swap
Credit Support Annex.
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(g) Upon
termination of the Trust Fund, any amounts remaining in the Swap Account shall
be distributed pursuant to the priorities set forth in Section
6.05(f).
(h) Upon
termination of the Trust Fund, any amounts remaining in the Swap Collateral
Account shall be distributed as required pursuant to the terms of the Swap
Credit Support Annex.
(i) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the Holder of the Class X Certificates unless and until
the date when either (a) there is more than one Holder of the Class X
Certificates or (b) any Class of Certificates in addition to the Class X
Certificates is recharacterized as an equity interest in the Supplemental
Interest Trust for federal income tax purposes. Neither the Master Servicer
nor
the Trustee shall be responsible for any entity level tax reporting for the
Supplemental Interest Trust.
(j) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Trustee, any obligation of the Trustee under the Swap Agreement
shall be deemed to be an obligation of the Supplemental Interest
Trust.
(k) In
the
event that the Swap Counterparty fails to perform any of its obligations under
the Swap Agreement (including, without limitation, its obligations to make
any
payment or transfer collateral), or breaches any of its representations and
warranties under the Swap Agreement, or in the event that an Event of Default,
Termination Event, or Additional Termination Event occurs (as such terms are
defined in the Swap Agreement), the Trustee, on behalf of the Supplemental
Interest Trust, shall (upon a Responsible Officer of the Trustee’s receiving
written notice or having actual knowledge of the occurrence thereof), as soon
as
practicable following such failure, breach or occurrence, notify the Swap
Counterparty and give any notice of such failure and make any demand for payment
pursuant to the Swap Agreement. In the event that the Swap Counterparty’s
obligations under the Swap Agreement are at any time guaranteed by a third
party, then to the extent that the Swap Counterparty fails to make any payment
or delivery required under terms of the Swap Agreement, the Trustee, on behalf
of the Supplemental Interest Trust, shall (upon a Responsible Officer of the
Trustee’s receiving written notice or having actual knowledge of the occurrence
thereof), as soon as practicable following such failure, demand that such
guarantor make any and all payments then required to be made by the applicable
guarantor.
Section
6.15. Rights
of Swap Counterparty.
The
Swap
Counterparty shall be deemed a third-party beneficiary of this Agreement to
the
same extent as if it were a party hereto and shall have the right, upon
designation of an “Early Termination Date” (as defined in the Swap Agreement),
to enforce its rights under this Agreement, which rights include but are not
limited to the obligation of the Trustee (A) to deposit any Net Swap Payment
required pursuant to Sections 6.05(b), (c) and (e), and any Swap Termination
Payment required pursuant to Sections 6.05(b), (c), (e) and (i), into the Swap
Account, (B) to pay any Net Swap Payment required pursuant to Section 6.05(f),
or Swap Termination Payment required pursuant to Sections 6.05(f) to the Swap
Counterparty and (C) to establish and maintain the Swap Account, to make such
deposits thereto, investments therein and distributions therefrom as are
required pursuant to Section 6.14. For the protection and enforcement of the
provisions of this Section the Swap Counterparty shall be entitled to such
relief as can be given either at law or in equity.
143
Section
6.16. Swap
Termination Receipts.
In
the
event of an “Early Termination Event” as defined under the Swap Agreement, (i)
any Swap Termination Payment made by the Swap Counterparty to the Swap Account
and paid pursuant to Section 6.05(f)(vii) (“Swap Termination Receipts”) will be
deposited in a segregated non-interest bearing account which shall be an
Eligible Account established by the Trustee in the name of the Trustee bearing
a
designation clearly indicating that the funds deposited therein are held for
the
benefit of the Certificateholders (the “Swap Termination Receipts Account”) and
(ii) any amounts received from a replacement Swap Counterparty (“Swap
Replacement Receipts”) will be deposited in a segregated non-interest bearing
account which shall be an Eligible Account established by the Trustee in the
name of the Trustee bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders (the “Swap
Replacement Receipts Account”). The Trustee shall invest, or cause to be
invested, funds held in the Swap Termination Receipts Account and the Swap
Replacement Receipts Account in time deposits of the Trustee as permitted by
clause (ii) of the definition of Eligible Investments as directed in writing
by
the Required Certificateholders. In the absence of such written direction,
such
funds shall remain uninvested. All such investments must be payable on demand
or
mature on a Swap Payment Date, a Distribution Date or such other date as
directed by the Required Certificateholders. All such Eligible Investments
will
be made in the name of the Trustee of the Supplemental Interest Trust (in its
capacity as such) or its nominee. All income and gain realized from any such
investment shall be deposited in the Swap Termination Receipts Account or the
Swap Replacement Receipts Account, as applicable, and all losses, if any, shall
be borne by the related account.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Swap Agreement(s)
or
procure a replacement guarantor, if applicable, and the Trustee shall promptly,
upon written direction of, and with the assistance and cooperation of the
Depositor, use amounts on deposit in the Swap Termination Receipts Account,
if
necessary, to enter into replacement Swap Agreement(s) or to execute any other
agreements with respect to such replacement guarantor, if applicable, which
shall be executed and delivered by the Trustee on behalf of the Supplemental
Interest Trust upon receipt of written confirmation from each Rating Agency
(if
required pursuant to the terms of the Swap Agreement) that such replacement
Swap
Agreement(s) will not result in the reduction or withdrawal of the rating of
any
outstanding Class of Certificates with respect to which it is a Rating Agency.
144
Amounts
on deposit in the Swap Replacement Receipts Account shall be held for the
benefit of the related Swap Counterparty and paid to such Swap Counterparty
if
the Supplemental Interest Trust is required to make a payment to such Swap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so applied shall, following the termination or expiration of such
replacement swap agreement, be paid to the Class X Certificates.
ARTICLE
VII
REMEDIES
Section
7.01. Limitation
on Suits.
No
Certificateholder shall have any right to institute any proceeding, judicial
or
otherwise, with respect to this Agreement, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(i) there
is
a continuing Event of Master Servicer Default and such Certificateholder has
previously given written notice to the Trustee of a continuing Event of Master
Servicer Default;
(ii) the
Required Certificateholders shall have made written request to the Trustee
to
institute proceedings in respect of such Event of Master Servicer Default in
its
own name as Trustee hereunder;
(iii) such
Certificateholders have offered to the Trustee reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with such
request;
(iv) the
Trustee, for 30 days after its receipt of such notice, request and offer of
indemnity, has failed to institute any such proceeding; and
(v) no
direction inconsistent with such written request has been given to the Trustee
during such 30-day period by the Required Certificateholders;
it
being
understood and intended that no one or more Certificateholders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of
this Agreement to affect, disturb or prejudice the rights of any other
Certificateholders, or to obtain or to seek to obtain priority or preference
over any other Certificateholders or to enforce any right under this Agreement,
except in the manner herein provided and for the ratable benefit of all the
Certificateholders as provided herein.
Notwithstanding
anything to the contrary herein, no Certificateholder, solely by virtue of
its
status as a Certificateholder, shall have any right by virtue of or by availing
itself of any provision of this Agreement to institute any suit, action or
proceeding in equity or at law against FHA or HUD upon or under or with respect
to any policy of FHA Insurance applicable to a Mortgage Loan or any purported
rights thereunder. All such direct rights against FHA or HUD shall be held
by
the Trustee as the designated mortgagee of record with respect to the FHA
Mortgage Loans and shall include, without limitation, the right to enforce
such
policy of FHA Insurance against FHA or HUD and require the payment by FHA or
HUD
of any amount due thereunder.
145
Section
7.02. Restoration
of Rights and Remedies.
If
the
Trustee or any Certificateholder has instituted any proceeding to enforce any
right or remedy under this Agreement and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee
or
to such Certificateholder, then and in every such case, subject to any
determination in such proceeding, the Seller, the Trustee and the
Certificateholders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Certificateholders shall continue as though no such proceeding had been
instituted.
Section
7.03. Rights
and Remedies Cumulative.
No
right
or remedy herein conferred upon or reserved to the Trustee or to the
Certificateholders is intended to be exclusive of any other right or remedy
and
every right and remedy shall, to the extent permitted by law, be cumulative
and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section
7.04. Delay
or Omission Not Waiver.
No
delay
or omission of the Trustee or of any Certificateholder to exercise any right
or
remedy accruing upon any Event of Master Servicer Default shall impair any
such
right or remedy or constitute a waiver of any such Event of Master Servicer
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Certificateholders may be exercised from
time
to time, and as often as may be deemed expedient, as permitted under the terms
hereof, by the Trustee or by the Certificateholders, as the case may
be.
Section
7.05. Control
by Certificateholders.
(a) Subject
to Section 7.06 hereof, the Required Certificateholders shall have the right
to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee hereunder; provided
that (i)
such direction shall not be in conflict with any rule of law or with this
Agreement, (ii) such direction shall not involve any action for which the
Trustee reasonably believes it may not obtain compensation or reimbursement
for
hereunder or, if the Trustee determines that such compensation or reimbursement
is not available, such Certificateholders have not offered the Trustee
reasonable indemnity for the cost of such actions, and (iii) the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
(b) Prior
to
the occurrence of an Event of Master Servicer Default hereunder and after the
curing or waiver of all Events of Master Servicer Default which may have
occurred, the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing to do so by the Required
Certificateholders;
provided, however,
that if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
Certificate afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability as a condition
to
taking any such action. The reasonable expense of every such examination
relating to an Event of Master Servicer Default shall be paid by the Master
Servicer if an Event of Master Servicer Default shall have occurred and be
continuing, and otherwise by the Certificateholders requesting the
investigation.
146
Section
7.06. Waiver
of Past Defaults.
The
Required Certificateholders may on behalf of the Certificateholders of all
the
Certificates waive any past default hereunder and its consequences.
Upon
any
such waiver, such default shall cease to exist, and any Event of Master Servicer
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Agreement; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section
7.07. Undertaking
for Costs.
All
parties to this Agreement agree, and each Certificateholder by the acceptance
of
a Certificate shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under
this Agreement, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in
its discretion assess reasonable costs, including reasonable attorneys’ fees and
disbursements, against any party litigant in such suit, having due regard to
the
merits and good faith of the claims or defenses made by such party litigant;
but
the provisions of this Section 7.07 (other than this clause) shall not apply
to
any suit instituted by the Depositor, by the Trustee, by the Master Servicer,
by
any Certificateholder or group of Certificateholders holding in the aggregate
more than 10% of the Voting Rights of the outstanding Certificates, or to any
suit instituted by any Certificateholder for the enforcement of the payment
of
any principal of or interest on any Certificate.
Section
7.08. Waiver
of Stay or Extension Laws.
The
Depositor covenants (to the extent that it may lawfully do so) that it will
not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the
benefit or advantage of, any stay or extension law wherever enacted, now or
at
any time hereafter in force, which may affect the covenants or the performance
of this Agreement; and the Depositor (to the extent that it may lawfully do
so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
147
ARTICLE
VIII
LIMITATION
ON LIABILITY; INDEMNITIES
Section
8.01. Liabilities
of Mortgagors.
No
obligation or liability of any Mortgagor under any of the Mortgage Loans is
intended to be assumed by the Depositor, the Master Servicer, the Trustee,
the
Holder of any Certificate under or as a result of this Agreement and the
transactions contemplated hereby and, to the maximum extent permitted and valid
under mandatory provisions of law, the Master Servicer, the Trustee and the
Holders of each Certificate expressly disclaim such assumption.
Section
8.02. Liability
of the Depositor.
(a) The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically imposed by this Agreement.
(b) Neither
the Depositor, nor any of the directors, officers, employees or agents of the
Depositor, shall be under any liability to the Trust Fund, the Master Servicer,
the Trustee or any Certificateholder for any action taken, or for refraining
from the taking of any action, in good faith pursuant to this Agreement, or
for
errors in judgment; provided,
however,
that
this provision shall not protect the Depositor or any such Person against any
breach of warranties or representations made herein, or against any specific
liability imposed on each such party pursuant to this Agreement or against
any
liability which would otherwise be imposed by reason of willful misfeasance,
bad
faith or negligence in the performance of duties or by reason of reckless
disregard of obligations or duties hereunder.
Section
8.03. Relationship
of Master Servicer.
The
relationship of the Master Servicer (and of any Successor Master Servicer under
this Agreement) to the Trustee and the Depositor under this Agreement is
intended by the parties hereto to be that of an independent contractor and
not
of a joint venturer, partner or agent of the Trustee or the Depositor, except
as
otherwise stated herein.
Section
8.04. Indemnities
of the Master Servicer.
(a) Subject
to Section 4.33 hereof, the Master Servicer agrees to indemnify the Trust Fund,
the Trustee and the Depositor and their respective directors, officers,
employers and agents (the “Indemnified Parties”) from, and hold them harmless
against, any and all costs, expenses (including reasonable attorney fees and
disbursements), losses, claims, damages and liabilities that the Indemnified
Parties may sustain to the extent attributable to the failure of the Master
Servicer to perform its duties under this Agreement in compliance with its
obligations hereunder, including, without limitation, its obligation to master
service the Mortgage Loans in compliance with the terms of this Agreement.
Each
Indemnified Party shall immediately notify the Master Servicer if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans
entitling the Trust Fund, the Depositor or the Trustee to indemnification
hereunder, whereupon the Master Servicer shall assume the defense of any such
claim and pay all expenses in connection therewith, including reasonable counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which
may
be entered against it or them in respect of such claim. This indemnification
shall survive the termination of this Agreement and the resignation or removal
of the Master Servicer.
148
(b) This
Section 8.04 shall survive the termination of this Agreement, the resignation
or
removal of the Master Servicer, and the resignation or removal of the Trustee,
with respect to the acts or omissions of the Master Servicer while it acted
as
Master Servicer.
ARTICLE
IX
CONCERNING
THE TRUSTEE
Section
9.01. Duties
of Trustee.
(a) If
an
Event of Master Servicer Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Agreement and use
the
same degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person’s own
affairs.
(b) Except
during the continuance of an Event of Master Servicer Default:
(i) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement and shall not be liable except for
the
performance of such duties and obligations as are specifically set forth in
this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Trustee; and
(ii) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the statements or opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
on
their face conforming to the requirements of this Agreement; however, the
Trustee shall examine the certificates and opinions to determine whether or
not
they conform on their face to the requirements of this Agreement.
(c) The
Trustee may not be relieved from liability for its own negligent action, its
own
negligent failure to act or its own willful misconduct, except
that:
(i) this
paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
149
(iii) the
Trustee shall not be required to take notice or be deemed to have notice or
knowledge of any default or Event of Master Servicer Default, unless a
Responsible Officer of the Trustee obtains actual knowledge or written notice
of
such default or Event of Master Servicer Default. In the absence of such actual
knowledge or notice, the Trustee may conclusively assume that there is no
default or Event of Master Servicer Default.
(d) Every
provision of this Agreement that in any way relates to the Trustee is subject
to
paragraphs (a), (b), (c) and (g) of this Section.
(e) The
Trustee shall not be liable for indebtedness evidenced by or arising under
any
of the Basic Documents, including principal of or interest on the Certificates,
or interest on any money received by it except as the Trustee may agree in
writing.
(f) Money
held in trust by the Trustee need not be segregated from other funds except
to
the extent required by law or the terms of this Agreement.
(g) No
provision of this Agreement shall require the Trustee to expend, advance 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 it
shall have reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it provided,
however,
that the
Trustee shall not refuse or fail to perform any of its duties hereunder solely
as a result of nonpayment of its normal fees and expenses.
(h) Every
provision of this Agreement or any Basic Document relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and Section 9.02.
(i) The
Trustee shall execute and deliver this Agreement, the Servicing Agreements,
the
Cap Agreement, the Swap Agreement and such other documents and instruments
as
shall be necessary or appropriate in accordance with its duties and obligations
hereunder, including without limitation, any agreement relating to any Pool
PMI
Insurance Policy. The Depositor hereby directs the Trustee to perform its
obligations under and make the representations contained in the Swap Agreement
and the Cap Agreement (including but not limited to the Tax Representations
in
Part 2 of the related documents) on the Closing Date and thereafter on behalf
of
the Supplemental Interest Trust, solely in its capacity as trustee of the
Supplemental Interest Trust and not in its individual capacity. Furthermore,
the
Depositor hereby authorizes the Trustee, in its capacity as trustee on behalf
of
the Supplemental Interest Trust, to (a) take direction from the applicable
Certificateholders as specified in the Swap Agreement and the Cap Agreement
and
(b) accept any “Firm Offer” or “offer capable when made of becoming legally
binding” as specified in the definition of “Market Quotation” in the schedule to
the Swap Agreement or the Cap Agreement, as applicable.
Section
9.02. Certain
Matters Affecting the Trustee.
(a) The
Trustee, and any director, officer, employee or agent of the Trustee may rely
in
good faith on any document of any kind which, prima facie, is properly executed
and submitted by any appropriate Person respecting any matters arising
hereunder. The Trustee may rely on any document believed by it to be genuine
and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
150
(b) Before
the Trustee acts or refrains from acting, it may require an Officer’s
Certificate or an Opinion of Counsel, which shall not be at the expense of
the
Trustee. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on an Officer’s Certificate or Opinion of
Counsel. The right of the Trustee to perform any discretionary act enumerated
in
this Agreement or in any Basic Document 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.
(c) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys or a custodian
or
nominee.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers;
provided
that the
Trustee’s conduct does not constitute willful misconduct, negligence or bad
faith.
(e) The
Trustee may consult with counsel, and any Opinion of Counsel with respect to
legal matters relating to this Agreement, any Basic Document and the
Certificates shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in
good faith and in accordance with any Opinion of Counsel of such
counsel.
(f) In
the
event that the Trustee is also acting as Certificate Registrar hereunder or
under any Basic Document, the rights and protections afforded to the Trustee
pursuant to this Article Six shall be afforded to such Certificate
Registrar.
Section
9.03. Trustee’s
Disclaimer.
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of any of the Basic Documents, the assets of the Trust
Fund, the assets of the Supplemental Interest Trust or the Certificates; it
shall not be accountable for the Depositor’s use of the proceeds from the
Certificates, and it shall not be responsible for any statement of the
Depositor, the Master Servicer, a Servicer or the Swap Counterparty in this
Agreement, any other Basic Documents or in any document issued in connection
with the sale of the Certificates or in the Certificates other than the
Trustee’s certificate of authentication.
Section
9.04. Trustee
May Own Certificates.
The
Trustee 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 the
Trustee.
Section
9.05. Compensation
and Indemnity.
The
Trustee shall be entitled, as compensation for its services as trustee, to
the
Trustee Fee, and for its services as custodian, to the Custodian Fee, as
provided herein. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Trustee shall be reimbursed
subject to Section 9.10 hereof from the Trust Fund, as provided in this
Agreement, for all reasonable expenses incurred or made by it under this
Agreement, including costs of collection, in addition to the compensation for
its services (as provided in this Agreement). Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee’s agents, counsel, accountants and experts.
151
The
Trust
Fund shall indemnify the Trustee and the Trustee’s employees, directors and
agents, as provided in this Agreement, against any and all claim, loss,
liability or expense (including attorneys’ fees) incurred by it in connection
with the administration of this trust, the Reserve Fund and the Supplemental
Interest Trust, and the performance of its duties hereunder or under any Basic
Document (to the extent not previously reimbursed above), including, without
limitation, the execution and filing of any federal or state tax returns and
information returns and being the mortgagee of record with respect to the
Mortgage Loans. The Trustee shall notify the Depositor promptly of any claim
for
which it may seek indemnity. Failure by the Trustee to so notify the Depositor
shall not relieve the Trust Fund of its obligations hereunder. The Trustee
may
have separate counsel and the fees and expenses of such counsel shall be paid
from the Trust Fund. The Trust Fund shall not be required to reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee’s own willful misconduct, negligence or bad
faith.
The
Trustee’s rights pursuant to this Section shall survive the discharge of this
Agreement.
Section
9.06. Replacement
of Trustee.
No
resignation or removal of the Trustee and no appointment of a successor Trustee
shall become effective until the acceptance of appointment by the successor
Trustee pursuant to this Section. The Trustee may resign at any time by giving
90 days’ written notice thereof to the Master Servicer, the Depositor, each
Certificateholder, each Rating Agency and the Swap Counterparty. The Depositor
shall remove the Trustee if:
(viii) the
Trustee fails to comply with Section 9.09;
(ix) the
Trustee is adjudged bankrupt or insolvent;
(x) a
receiver or other public officer takes charge of the Trustee or its property;
or
(xi) the
Trustee otherwise becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of the
Trustee for any reason (the Trustee in such event being referred to herein
as
the retiring Trustee), the Depositor shall promptly appoint a successor Trustee
that satisfies the eligibility requirements of Section 9.09.
The
resigning or removed Trustee agrees to cooperate with the Master Servicer and
any successor Trustee in effecting the termination of the resigning or removed
Trustee’s responsibilities and rights hereunder and shall promptly provide such
successor Trustee all documents and records reasonably requested by it to enable
it to assume the Trustee’s functions hereunder.
152
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Depositor. Thereupon the resignation or removal
of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Agreement.
The
successor Trustee shall mail a notice of its succession to Certificateholders.
The retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee.
If
a
successor Trustee does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Depositor or the Required
Certificateholders may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If
the
Trustee fails to comply with Section 9.09, any Certificateholder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Section
9.07. Successor
Trustee by Merger.
If
the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee; provided
that
such corporation or banking association shall be otherwise qualified and
eligible under Section 9.09. The Trustee shall provide each Rating Agency prior
written notice of any such transaction.
In
case
at the time such successor or successors by merger, conversion or consolidation
to the Trustee shall succeed to the trusts created by this Agreement any of
the
Certificates shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Certificates so authenticated; and in case at that
time
any of the Certificates shall not have been authenticated, any successor to
the
Trustee may authenticate such Certificates either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the
Certificates or in this Agreement provided that the certificate of the Trustee
shall have.
Section
9.08. Appointment
of Co-Trustee or Separate Trustee.
(a) Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirement of any jurisdiction in which any part of the Trust Fund
may at the time be located, the Trustee shall have the power and may execute
and
deliver all instruments to appoint one or more Persons to act as a co-trustee
or
co-trustees, or separate trustee or separate trustees, of all or any part of
the
Trust Fund and to vest in such Person or Persons, in such capacity and for
the
benefit of the Certificateholders, such title to the Trust Fund, or any part
hereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Trustee may consider necessary
or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet
the terms of eligibility as a successor trustee under Section 9.09 and no notice
to Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 9.06 hereof.
153
(b) 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 the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title
to
the Trust Fund or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) no
trustee hereunder shall be personally liable by reason of any act or omission
of
any other trustee hereunder; and
(iii) the
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
Six.
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.
(d) 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
9.09. Eligibility;
Disqualification.
The
Trustee (or any Affiliate of the Trustee, in the case of (iv) below) shall
at
all times (i) have a combined capital and surplus of at least $100,000,000
as
set forth in its most recent published annual report of condition, (ii) have
a
long term deposit rating of at least A or the equivalent by each Rating Agency,
(iii) not be an Affiliate of the Depositor or the Master Servicer or any
Servicer, (iv) be an FHA Approved Mortgagee and be qualified to own and hold
VA
Mortgage Loans, (v) be in compliance with all applicable Regulations, (vi)
be a
corporation or association organized and doing business under the laws of the
United States or any State thereof, (vii) be authorized to exercise corporate
trust powers and (viii) be subject to supervision or examination by a federal
or
state authority. In case at any time the Trustee shall cease to be eligible
in
accordance with provisions of this Section, the Trustee shall resign immediately
in the manner and with the effect specified in Section 9.06.
154
Section
9.10. Fees
and Expenses.
On
each
Distribution Date, the Trustee shall be entitled to withdraw from the
Certificate Distribution Account, pursuant to Section 6.04(c) hereof, the
Trustee Fee and the Custodian Fee. In addition, the Trustee and any co-trustee
are entitled to reimbursement from the Collection Account, in accordance with
Section 4.08(ix) of this Agreement, for all reasonable expenses, disbursements
and advances incurred or made by the Trustee or any co-trustee in accordance
with any provisions of this Agreement (including the reasonable compensation
and
the expenses and disbursements of its counsel and of all persons not regularly
in its employ, and the expenses incurred by the Trustee or any co-trustee in
connection with the appointment of an office or agency pursuant to Section
9.08
hereof) except any such expense, disbursement or advance as may arise from
its
negligence, bad faith or willful misconduct; provided,
however,
that
the Trustee’s reimbursable fees and expenses may not exceed $100,000 during any
Anniversary Year. In the event that the Trustee incurs reimbursable fees and
expenses in excess of $100,000, it may seek reimbursement for such amounts
in
subsequent Anniversary Years, but in no event shall more than $100,000 be
reimbursed to the Trustee per Anniversary Year.
Section
9.11. Representations
and Warranties.
The
Trustee hereby represents and covenants that:
(i) the
Trustee is duly organized and validly existing as a national banking association
in good standing under the laws of the United States with power and authority
to
own its properties and to conduct its business as such properties are currently
owned and such business is presently conducted;
(ii) the
Trustee has the power and authority to execute and deliver this Agreement and
to
carry out its terms; and the execution, delivery and performance of this
Agreement have been duly authorized by the Trustee by all necessary corporate
action;
(iii) the
consummation of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under the articles of organization or bylaws of the
Trustee or any agreement or other instrument to which the Trustee is a party
or
by which it is bound;
(iv) to
the
Trustee’s best knowledge, there are no proceedings or investigations pending or
threatened before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Trustee or its
properties: (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that might materially
and
adversely affect the performance by the Trustee of its obligations under, or
the
validity or enforceability of, this Agreement; and
155
(v) the
Trustee is an FHA Approved Mortgagee and is qualified to own and hold VA
Mortgage Loans, shall at all times maintain such status, and shall, at its
own
expense, maintain compliance with all applicable Regulations.
Section
9.12. Trustee
Exchange Act Reporting Requirements.
Notwithstanding
any other provision of this Agreement, the Trustee
shall
(i)
agree to such modifications and enter into such amendments to this Agreement
as
may be reasonably necessary for the Depositor to comply with any rules
promulgated by the Commission and any interpretations thereof by the staff
of
the Commission (collectively, “SEC Rules”), provided
that the
Trustee has the right to negotiate any change affecting its rights or
responsibilities under this Agreement and (ii) promptly upon request provide
to
the Depositor for inclusion in any periodic report required to be filed under
the Exchange Act such items of information regarding this Agreement and matters
related to the Trustee,
including as applicable (by way of example and not limitation), a description
of
any material litigation or governmental action or proceeding involving the
Trustee
or its affiliates;
provided
that
such information shall be required to be provided by the Trustee only to the
extent that such shall be reasonably necessary for the Depositor to comply
with
any SEC Rules.
ARTICLE
X
MISCELLANEOUS
Section
10.01. Termination
upon Liquidation or Purchase of all Mortgage Loans.
Subject
to Section 10.03, the respective obligations and responsibilities of the Master
Servicer, the Depositor and the Trustee created hereby (other than obligations
expressly stated to survive the termination of the Trust Fund) shall terminate
on the date (the “Termination Date”) which is the earlier to occur
of:
(i) the
day
after the day on which the Certificates, including any Deferred Principal
Amounts owed thereon, are paid in full (including payment pursuant to Section
10.02 below); and
(ii) the
date
that is 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.
Section
10.02. Optional
Termination; Final Distribution on the Certificates.
(a) On
any
Distribution Date on or after the first Distribution Date on which the Aggregate
Pool Balance as of the beginning of the related Due Period is less than ten
percent of the Cut-off Date Aggregate Pool Balance, the Master Servicer, acting
directly or through one or more Affiliates, shall have the option to purchase
from the Trustee all (but not fewer than all) of the Mortgage Loans and all
other property of the Trust Fund at a cash price equal to the sum of (u) the
greater of (i) the sum of (a) the unpaid principal balance of each Mortgage
Loan
immediately prior to the date of purchase and (b) the
amount of any costs and damages incurred by the Trust Fund as a result of any
violation of any predatory or abusive lending law arising from or in connection
with the origination of such Mortgage Loan
and (ii)
the fair market value of such Mortgage Loans (disregarding accrued interest),
(v) any accrued and unpaid interest on the Mortgage Loans from the date as
to
which interest was last paid to (but not including) the Due Date in the Due
Period immediately preceding the related Distribution Date, calculated at the
Mortgage Rate thereon to but not including the related Distribution Date, (w)
any unreimbursed Servicing Advances with respect to such Mortgage Loan, (x)
the
Class A-IO Termination Amount (y) the fair market value of all other property
of
the Trust Fund and (z) any Swap Termination Payment owed to the Swap
Counterparty as a result of such optional purchase of the Mortgage Loans that
remain outstanding (the sum of the amounts in clauses (u) through (z), the
“Termination Price”). The Master Servicer shall deliver written notice of its
intention to exercise such option to the Trustee not less than ten days prior
to
the applicable Distribution Date. Upon exercise of such option, the property
of
the Trust Fund shall be sold to the Master Servicer at a price equal to the
Termination Price.
156
In
connection with such purchase, the Master Servicer shall remit to the Trustee
all amounts then on deposit in the Collection Account in respect of the related
Total Distribution Amount for deposit to the Certificate Distribution Account,
which deposit shall be deemed to have occurred immediately preceding such
purchase.
(b) If
on any
Determination Date the Master Servicer determines that there are no outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Certificate Distribution Account, the Master Servicer shall direct
the Trustee promptly to send a final distribution notice to each
Certificateholder. If the Master Servicer elects to terminate the Trust Fund
pursuant to clause (a) of Section 10.02, at least 10 days prior to the date
notice is to be mailed to the affected Certificateholders the Master Servicer
shall notify the Depositor and the Trustee of the date of termination of the
Trust Fund and of the applicable repurchase price of the Mortgage Loans and
REO
Properties.
Notice
of
any termination of the Trust Fund, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Trustee by letter
to Certificateholders mailed not earlier than the 5th day and no later than
the
28th day of the month next preceding the month of such final distribution.
Any
such notice shall specify (a) the Distribution Date upon which final
distribution on the Certificates will be made upon presentation and surrender
of
Certificates at the office therein designated, (b) the amount of such final
distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distributions
being made only upon presentation and surrender of the Certificates at the
office therein specified. The Trustee will give such notice to each Rating
Agency at the time such notice is given to Certificateholders.
In
the
event such notice is given, the Master Servicer shall cause all funds in the
Collection Account to be remitted to the Trustee for deposit in the Certificate
Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the purchaser the Mortgage Files for the Mortgage
Loans.
157
Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Certificateholders of each Class, in each case on the final
Distribution Date and in the order set forth in Section 6.05(i), in proportion
to their respective Percentage Interests, with respect to Certificateholders
of
the same Class, an amount equal to (i) as to each Class of Regular Certificates,
the Class Principal Balance thereof plus
accrued
interest thereon (or on their Class Notional Balance, if applicable) in the
case
of an interest bearing Certificate (plus,
as to
the Class A-IO Certificates, the Class A-IO Termination Amount, in the case
of
termination pursuant to Section 10.02(a) above), and (ii) as to the Class RL
Certificates, the amount, if any, which remains on deposit in the Certificate
Distribution Account (other than the amounts retained to meet claims) after
application pursuant to clause (i) above.
In
the
event that any affected Certificateholders shall not surrender Certificates
for
cancellation within six months after the date specified in the above-mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six months after the
second notice all the applicable Certificates shall not have been surrendered
for cancellation, the Trustee may take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and
the
cost thereof shall be paid out of the funds and other assets which remain a
part
of the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Class RL Certificates
shall be entitled to all unclaimed funds and other assets of the Trust Fund
which remain subject hereto.
(c) In
connection with any purchase of the property of the Trust Fund pursuant to
paragraphs (a) or (b) of this Section 10.02, the Master Servicer shall reimburse
itself and each applicable Servicer for any amounts to be reimbursed to the
Master Servicer or such Servicer pursuant to this Agreement and the applicable
Servicing Agreements from funds in the Collection Account prior to remitting
the
balance of the funds in the Collection Account to the Certificate Distribution
Account. Promptly following any such purchase pursuant to paragraphs (a) or
(b)
of this Section, the Trustee shall release the Mortgage Files to the purchaser
of such Mortgage Loans pursuant to this Section 10.02, or otherwise upon its
order.
(d) Promptly
following the sale of the Mortgage Loans pursuant to this Section, the Master
Servicer shall notify each Servicer in writing of the date of sale and the
identity of the purchaser.
Section
10.03. Additional
Termination Requirements.
(a) In
the
event that the Master Servicer exercises the purchase option as provided in
Section 10.02(a) on its own behalf, the “Terminating Party”), the Trust Fund
shall be terminated in accordance with the following additional requirements,
unless the Trustee has been supplied with an Opinion of Counsel, at the expense
of the Terminating Party, to the effect that the failure to comply with the
requirements of this Section 10.03 will not result in an Adverse REMIC
Event:
158
(i) Within
90
days prior to the final Distribution Date set forth in the notice given under
Section 10.02, the Terminating Party shall prepare and the Trustee, at the
expense of the Terminating Party, shall adopt a plan of complete liquidation
within the meaning of section 860F(a)(4) of the Code which, as evidenced by
an
Opinion of Counsel (which opinion shall not be an expense of the Trustee or
the
Tax Matters Person), meets the requirements of a qualified liquidation;
and
(ii) Within
90
days after the time of adoption of such a plan of complete liquidation, the
Trustee shall sell all of the assets of the Trust Fund to the Master Servicer
for cash.
(b) The
Trustee as agent for any REMIC hereby agrees to adopt and sign such a plan
of
complete liquidation upon the written request of the Master Servicer, and the
receipt of the Opinion of Counsel referred to in Section 10.03(a)(i) and to
take
such other action in connection therewith as may be reasonably requested by
the
Master Servicer.
(c) By
their
acceptance of the Certificates, the Holders thereof hereby authorize the
Terminating Party to prepare and the Trustee to adopt and sign a plan of
complete liquidation.
Section
10.04. Beneficiaries.
This
Agreement will inure to the benefit of and be binding upon the parties hereto,
the Holders of the Certificates, and their respective successors and permitted
assigns. No other Person will have any right or obligation hereunder, except
to
the extent specified in Section 6.15.
Section
10.05. Amendment.
(a) This
Agreement may be amended from time to time by the Depositor, the Master Servicer
and the Trustee, without the consent of any of the Holders of the Certificates
or the Swap Counterparty (i) to cure any ambiguity; (ii) to correct or
supplement any provision herein that may be inconsistent with any other
provision herein, to correct any error or to conform the provisions hereof
to
statements made in the Prospectus; (iii) to obtain or maintain a rating for
a
Class of Certificates from a nationally recognized statistical rating
organization; (iv) to change the timing and/or nature of deposits in the Trust
Accounts or to change the name in which the Collection Account is maintained
(except that (x) deposits into the Certificate Distribution Account must be
made
no later than the related Distribution Date and (y) such change will not result
in a qualification, withdrawal or downgrade of the then-current rating of any
rated Classes of Certificates, as evidenced by letters from the Rating
Agencies); (v) to modify, eliminate or add to any of its provisions (x) to
the
extent necessary to (1) maintain the qualification of any REMIC as a REMIC
under
the Code, (2) avoid or minimize the risk of imposition of any tax on the Trust
Fund or any REMIC or (3) comply with other requirements of the Code,
provided
that the
Trustee has received an Opinion of Counsel to the effect that such action is
necessary or desirable to avoid or minimize such risk or (y) to restrict the
transfer of any Residual Certificate; and (vi) to make any other provisions
with
respect to matters or questions arising under this Agreement, provided
that
such action pursuant to this clause (vi) will not adversely affect in any
material respect the interests of any Certificateholder or the Swap Counterparty
as evidenced by either an Opinion of Counsel or by a letter from each Rating
Agency to the effect that such change will not adversely affect the applicable
ratings of any rated Classes of the Certificates, and provided,
further,
that if
any Class of Certificates rated by S&P remains outstanding at the time of
such proposed amendment, such letter from S&P shall be required under this
clause (vi), notwithstanding the immediately preceding proviso.
159
(b) This
Agreement may also be amended from time to time by the Master Servicer, the
Depositor and the Trustee, with the consent of the Required Certificateholders
and the Swap Counterparty, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders of the Certificates;
provided,
however,
that no
such amendment shall (a) reduce in any manner the amount of, or delay the timing
of, collections of payments on the Mortgage Loans or distributions which are
required to be made on any Certificate then outstanding, (b) reduce the
percentage required to consent to any such amendment, (c) cause the Trust to
be
taxable as a corporation for federal income tax purposes or (d) modify this
Section 10.05(b) without the consent of the Holders of all of the Certificates
affected by such amendment. The Trustee may set a record date for purposes
of
determining the holders entitled to give a written consent or waive compliance
as authorized or permitted by this Section 10.05(b). Such record date shall
not
be more than 30 days prior to the first solicitation to such consent or
waiver.
(c) Promptly
after the execution of any amendment or consent pursuant to this Section 10.05,
the Trustee shall furnish a copy of such amendment to each Holder of a
Certificate and, not later than the tenth Business Day preceding the
effectiveness of any such amendment, to each Rating Agency and the Swap
Counterparty.
(d) The
manner of obtaining consents and of evidencing the authorization of the
execution thereof by Holders of the Certificates shall be subject to such
reasonable requirements as the Trustee may prescribe.
(e) The
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Trustee’s own rights, duties or immunities under this Agreement or
otherwise.
(f) In
connection with any amendment pursuant to this Section 10.05, the Trustee,
the
Master Servicer and the Depositor shall be entitled to receive an Opinion of
Counsel to the effect that (i) such amendment is authorized or permitted by
the
Agreement and that all conditions precedent to the execution of such amendment
in accordance with the relevant provisions of this Section 10.05 have been
met
and (ii) such amendment will not result in an Adverse REMIC Event.
(g) Notwithstanding
anything to the contrary in this Section 10.05, this Agreement may be amended
from time to time by the Depositor, the Master Servicer and the Trustee to
the
extent necessary, in the judgment of the Depositor and its counsel, to comply
with the SEC Rules.
Section
10.06. Notices.
(a) All
communications and notices to the parties hereto shall be in writing and
delivered as follows:
160
If
to
the Master Servicer, to:
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxxxx - Xxxxxxx 0000-X
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
If
to
the Master Servicer via overnight delivery to:
0000
Xxx
Xxxxxxxxx Xx.
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxxxx - Xxxxxxx 0000-X
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
If
to
the Trustee, to:
U.S.
Bank
National Association
00
Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx.
Xxxx,
Xxxxxxxxx 00000
Attention:
Corporate Trust Services - Bayview 2007-B
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
If
to
the Depositor, to:
Bayview
Financial Securities Company, LLC
0000
Xxxxx xx Xxxx Xxxxxxxxx, 0xx
Xxxxx
Xxxxx
Xxxxxx, Xxxxxxx 00000
Telephone:
(000)
000-0000
Facsimile:
(000) 000-0000
If
to
the Rating Agencies, to:
Fitch
Ratings
Xxx
Xxxxx
Xxxxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Bayview 2007-B
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
Standard
& Poor’s Ratings Services
00
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
161
Attn:
Bayview 2007-B
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Bayview 2007-B
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
If
to
the Cap Provider, to:
Barclays
Bank PLC
0
Xxx
Xxxxx Xxxxxxxxx
Xxxxxx
Xxxx
Xxxxxx
X00 0XX
Attention:
General Counsel's Office
Telephone:
00(00)000 00000
Telecopier:
00(00)000 00000
If
to
the Swap Counterparty, to:
Xxxxxxx
Xxxxx Capital Services, Inc.
Xxxxxxx
Xxxxx World Headquarters
4
World
Financial Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Swap Group
Telephone:
(000)
000-0000
Telecopier:
(000) 000-0000
or
at
such other address as the party may designate by notice to the other parties
hereto, which shall be effective when received.
(b) The
Trustee shall, at the expense of the Trust Fund, make available to each Rating
Agency such information as such Rating Agency may reasonably request regarding
the Certificates or the Trust Fund, to the extent that such information is
reasonably available to the Trustee.
(c) All
communications and notices to Certificateholders given pursuant hereto shall
be
in writing and mailed first class mail, postage prepaid at the address shown
above, or, in the case of the Certificateholders, at the address shown in the
Certificate Register, as applicable. Such notices shall be deemed given when
mailed.
Section
10.07. Merger
and Integration.
Except
as
specifically stated otherwise herein, this Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement. This
Agreement may not be modified, amended, waived or supplemented except as
provided herein.
162
Section
10.08. Headings.
The
headings herein are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
Section
10.09. [Reserved]
Section
10.10. Severability
of Provisions.
If
any
one or more of the covenants, provisions or terms of this Agreement shall be
for
any reason whatsoever held invalid, then such covenants, provisions or terms
shall be deemed severable from the remaining covenants, provisions or terms
of
this Agreement, and shall in no way affect the validity or enforceability of
the
other provisions of this Agreement, the rights of the Certificateholders or
the
rights of the Trustee.
Section
10.11. No
Proceedings.
Notwithstanding
any prior termination of this Agreement, the Trustee, the Master Servicer and
the Depositor shall not, prior to the date which is one year and one day after
the termination of this Agreement, acquiesce, petition or otherwise invoke
or
cause any Person to invoke the process of any court or government authority
for
the purpose of commencing or sustaining a case against the Depositor or the
Trust Fund under any federal or state bankruptcy, insolvency or similar law
or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or
other similar official of the Depositor or the Trust Fund or any substantial
part of their respective property, or ordering the winding up or liquidation
of
the affairs of the Depositor or the Trust Fund.
Section
10.12. Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
(b) THE
MASTER SERVICER, THE DEPOSITOR AND THE TRUSTEE HEREBY SUBMIT (TO THE EXTENT
PERMITTED BY LAW) TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF
MANHATTAN IN NEW YORK CITY, SOLELY WITH RESPECT TO MATTERS ARISING UNDER THIS
AGREEMENT, AND EACH WAIVES (TO THE EXTENT PERMITTED BY LAW) PERSONAL SERVICE
OF
ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE
MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS SET FORTH IN SECTION 10.06
HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON RECEIPT THEREOF.
THE MASTER SERVICER, THE DEPOSITOR AND THE TRUSTEE EACH HEREBY WAIVES (TO THE
EXTENT PERMITTED BY LAW) ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY
OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE
COURT. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE MASTER SERVICER,
THE DEPOSITOR AND THE TRUSTEE TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY SUCH PERSON TO BRING ANY ACTION
OR
PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
163
(c) THE
MASTER SERVICER, THE DEPOSITOR AND THE TRUSTEE EACH HEREBY WAIVES (TO THE EXTENT
PERMITTED BY LAW) ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED
WITH,
RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED
IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section
10.13. Counterparts.
This
Agreement may be executed in counterparts each of which shall be an original,
but all of which together shall constitute one and the same
instrument.
Section
10.14. Taxes.
It
is
intended that the assets with respect to which any REMIC election is to be
made,
as set forth in the Preliminary Statement to this Agreement, shall constitute,
and that the conduct of matters relating to such assets shall be such as to
qualify such assets as, a “real estate mortgage investment conduit” as defined
in and in accordance with the REMIC Provisions. In furtherance of such
intention, the Master Servicer covenants and agrees that it shall act as agent
(and the Master Servicer is hereby appointed to act as agent) on behalf of
any
such REMIC and that in such capacity it shall: (a) prepare and file, or cause
to
be prepared and filed, in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted
by
the Internal Revenue Service) and prepare and file or cause to be prepared
and
filed with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with respect
to any such REMIC, containing such information and at the times and in the
manner as may be required by the Code or state or local tax laws, regulations,
or rules, and furnish or cause to be furnished to Certificateholders the
schedules, statements or information at such times and in such manner as may
be
required thereby; (b) within thirty days of the Closing Date, furnish or cause
to be furnished to the Internal Revenue Service, on Forms 8811 or as otherwise
may be required by the Code, the name, title, address, and telephone number
of
the person that the holders of the Certificates may contact for tax information
relating thereto, together with such additional information as may be required
by such Form, and update such information at the time or time in the manner
required by the Code; (c) make or cause to be made elections that such assets
be
treated as a REMIC on the federal tax return for its first taxable year (and,
if
necessary, under applicable state law); (d) prepare and forward, or cause to
be
prepared and forwarded, to the Certificateholders and to the Internal Revenue
Service and, if necessary, state tax authorities, all information returns and
reports as and when required to be provided to them in accordance with the
REMIC
Provisions, including without limitation, the calculation of any original issue
discount using the Prepayment Assumption; (e) provide information necessary
for
the computation of tax imposed on the transfer of a Residual Certificate to
a
Person that is not a Permitted Transferee, or agent (including a broker, nominee
or other middleman) of a Non-Permitted Transferee, or a pass-through entity
in
which a Non-Permitted Transferee is the record holder of an interest (the
reasonable cost of computing and furnishing such information may be charged
to
the Person liable for such tax); (f) to the extent that they are under its
control conduct matters relating to such assets at all times that any
Certificates are outstanding so as to maintain the status as a REMIC under
the
REMIC Provisions; (g) not knowingly or intentionally take any action or omit
to
take any action that would cause the termination of any REMIC status; (h) pay,
from the sources specified in the last paragraph of this Section 10.14, the
amount of any federal or state tax, including prohibited transaction taxes
as
described below, imposed on any such REMIC prior to its termination when and
as
the same shall be due and payable (but such obligation shall not prevent the
Trustee or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings); (i) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to any such REMIC, including but not limited
to
the income, expenses, assets and liabilities thereof and adjusted basis of
the
assets determined at such intervals as may be required by the Code, as may
be
necessary to prepare the foregoing returns, schedules, statements or
information; and (k) as and when necessary and appropriate, represent any such
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 such REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any such REMIC, and otherwise act on
behalf of any such REMIC in relation to any tax matter or controversy involving
it.
164
In
order
to enable the Master Servicer to perform its duties as set forth herein, the
Depositor shall provide, or cause to be provided, to the Master Servicer within
ten (10) days after the Closing Date all information or data that the Master
Servicer requests in writing and determines to be relevant for tax purposes
to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows
of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Master Servicer promptly upon written request therefor, any such
additional information or data that the Master Servicer may, from time to time,
reasonably request in order to enable the Master Servicer to perform its duties
as set forth herein. The Depositor hereby indemnifies the Master Servicer for
any losses, liabilities, damages, claims or expenses of the Master Servicer
arising from any errors or miscalculations of the Master Servicer that result
from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Master Servicer on a timely
basis.
165
In
the
event that any tax is imposed on “prohibited transactions” of any REMIC
hereunder as defined in Section 860F(a)(2) of the Code, on the “net income from
foreclosure property” of such REMIC as defined in Section 860G(c) of the Code,
on any contribution to any REMIC hereunder after the Startup Day pursuant to
Section 860G(d) of the Code, or any other tax is imposed, including, without
limitation, any minimum tax imposed upon any REMIC hereunder pursuant to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if not
paid as otherwise provided for herein, such tax shall be paid by (i) the
Trustee, if any such other tax arises out of or results from a breach by the
Trustee of any of its obligations under this Agreement, (ii) the Master
Servicer, in the case of any such minimum tax, or if such tax arises out of
or
results from a breach by the Master Servicer of any of its obligations under
this Agreement, (iii) the Seller, if any such tax arises out of or results
from
the Seller’s obligation to repurchase a Mortgage Loan pursuant to Section 2.02
or 2.03 or (iv) in all other cases, or in the event that the Trustee, the Master
Servicer or the Seller fails to honor its obligations under the preceding
clauses (i), (ii) or (iii), any such tax will be paid with amounts otherwise
to
be distributed to the Certificateholders.
Section
10.15. [Reserved]
Section
10.16. Provision
of Information.
(a) For
so
long as any of the Restricted Certificates are “restricted securities” within
the meaning of Rule 144(a)(3) under the Securities Act, the Trustee agrees
to
provide to any holder of Restricted Certificates and to any prospective
purchaser of Restricted Certificates designated by such a Certificateholder,
upon the request of such Certificateholder or prospective purchaser, the
information specified below, which is intended to satisfy the condition set
forth in Rule 144A(d)(4) under the Securities Act; provided
that
this Section shall require, as to the Depositor, the Trustee or the Master
Servicer, only that the Trustee provide publicly available information regarding
it, the Depositor, the Trust Fund or the Master Servicer in response to any
such
request:
(i) the
Prospectus and any amendments and supplements thereto;
(ii) the
Basic
Documents and any amendments thereto;
(iii) the
Master Servicer’s certificate required pursuant to Section 4.28 of this
Agreement and the corresponding certificate of each Servicer required pursuant
to the applicable Servicing Agreement;
(iv) copies
of
each statement or report sent to Certificateholders pursuant to Section 6.08
during the 12 months immediately prior to such request; and
(v) such
other information as is reasonably available to the Trustee and is directly
related to the distributions on the Certificates and the servicing and
performance of the Mortgage Loans.
Any
recipient of information provided pursuant to this Section shall agree that
such
information shall not be disclosed or used for any purpose other than the
evaluation of the Certificates by the prospective purchaser. The Depositor
and
the Trustee shall have no responsibility for the sufficiency under Rule 144A
of
any information so provided by the Trustee to any Certificateholder or
prospective purchaser of Restricted Certificates.
166
(b) The
Master Servicer will make available on its internet website at xxx.xxxxxxx.xxx
(i) a copy (excluding exhibits) of reports on Form 8-K (or other prescribed
form) or Form 10-K filed with the Commission pursuant to Section 4.31 and (ii)
a
copy of any other document incorporated by reference in the Prospectus. Any
reasonable out-of-pocket expenses incurred by the Master Servicer in providing
copies of such documents shall be reimbursed by the Depositor.
167
IN
WITNESS WHEREOF, the parties hereto have caused this Pooling and Servicing
Agreement to be executed by their respective officers thereunto duly authorized
on the day and year first above written.
BAYVIEW
FINANCIAL SECURITIES COMPANY, LLC, as Depositor
By:
/s/ Xxxxx Xxxxxxxxxx
Name:
Xxxxx Xxxxxxxxxx
Title:
Vice
President
XXXXX
FARGO BANK, N.A.,
as
Master
Servicer
By:
/s/ Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Assistant Vice President
U.S.
BANK
NATIONAL ASSOCIATION, not in its individual capacity, but solely as
Trustee
By:
/s/ Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Vice President
Accepted
and Agreed to for purposes of Section 2.01,
Section
4.06, Section 4.34 and Section 6.02 only:
BAYVIEW
FINANCIAL, L.P.
By:
BAYVIEW FINANCIAL MANAGEMENT CORP.,
its
General Partner
By:
/s/ Xxxxx Xxxxxxxxxx
Name:
Xxxxx Xxxxxxxxxx
Title:
First Vice President
EXHIBIT
A
FORMS
OF
CERTIFICATES
[See
Tab
[[●]]]
A-1
EXHIBIT
B
FORM
OF
INITIAL CERTIFICATION
[Date]
Bayview
Financial Securities Company, LLC
0000
Xxxxx xx Xxxx Xxxxxxxxx, 0xx
Xxxxx
Xxxxx
Xxxxxx, Xxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
|
Re:
|
Pooling
and Servicing Agreement dated as of July 1, 2007, among Bayview
Financial Securities Company, LLC,
as depositor, Xxxxx Fargo Bank, N.A., as master servicer, and U.S.
Bank
National Association, as trustee (the
“Pooling and Servicing
Agreement”)
|
Ladies
and Gentlemen:
In
accordance with the provisions of the Pooling and Servicing Agreement, the
undersigned, as Trustee, hereby certifies that as to any Mortgage Loan listed
in
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan listed on the exceptions report attachment hereto), it has
reviewed the documents delivered to it pursuant to the Pooling and Servicing
Agreement and has determined that (i) all Mortgage Notes and Assignments,
installment sale contracts or contracts for purchase required to be delivered
to
it pursuant to the Pooling and Servicing Agreement are in its possession and
(ii) each such Mortgage Note and Assignment, installment sale contract or
contract for purchase has been reviewed by it and appears regular on its face,
appears to bear original signatures, and has not been mutilated, damaged, torn
or otherwise physically altered and relates to such Mortgage Loan. The
undersigned has made no independent examination of such documents beyond the
review specifically required in the Pooling and Servicing Agreement. The
undersigned makes no representations or warranties as to: (i) the validity,
legality, enforceability or genuineness of any such documents contained in
each
or any of the Mortgage Loans identified in the Mortgage Loan Schedule, or (ii)
the collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
This
Certification is subject in all respects to the Pooling and Servicing Agreement
including, but not limited to, Section 2.02.
B-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:________________________________
Name:
Title:
B-2
EXHIBIT
C
FORM
OF
INTERIM CERTIFICATION
[Date]
Bayview
Financial Securities Company, LLC
0000
Xxxxx xx Xxxx Xxxxxxxxx, 0xx
Xxxxx
Xxxxx
Xxxxxx, Xxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
|
Re:
|
Pooling
and Servicing Agreement dated as of July 1, 2007, among Bayview
Financial Securities Company, LLC,
as depositor, Xxxxx Fargo Bank, N.A., as master servicer, and U.S.
Bank
National Association, as trustee (the
“Pooling and Servicing
Agreement”)
|
Ladies
and Gentlemen:
In
accordance with the provisions 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
any
Mortgage Loan listed on the exceptions report attached hereto), it has received
the applicable documents listed in Section 2.01 of the Pooling and Servicing
Agreement.
The
undersigned hereby certifies 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 identified above and has determined that (a) each such
document has not been mutilated, damaged or torn and relates to the Mortgage
Loan identified in such document and (b) the information set forth in the
Mortgage Loan Schedule that corresponds to items (i) through (iii) of the
definition of Mortgage Loan Schedule contained in the Pooling and Servicing
Agreement accurately reflects information set forth in the Mortgage
File.
This
Certification is qualified in all respects by the terms of the Pooling and
Servicing Agreement including, but not limited to, Section 2.02.
C-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:________________________________
Name:
Title:
C-2
EXHIBIT
D
FORM
OF
FINAL CERTIFICATION
[Date]
Bayview
Financial Securities Company, LLC
0000
Xxxxx xx Xxxx Xxxxxxxxx, 0xx
Xxxxx
Xxxxx
Xxxxxx, Xxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
|
Re:
|
Pooling
and Servicing Agreement dated as of July 1, 2007, among Bayview
Financial Securities Company, LLC,
as depositor, Xxxxx Fargo Bank, N.A., as master servicer, and U.S.
Bank
National Association, as trustee (the
“Pooling and Servicing
Agreement”)
|
Ladies
and Gentlemen:
In
accordance with the provisions 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
any
Mortgage Loan listed on the exceptions report attached hereto), it 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 in 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 (i) through (iii) of the Mortgage
Loan Schedule is correct.
This
Certification is qualified in all respects by the terms of the Pooling and
Servicing Agreement including, but not limited to, Section 2.02.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:________________________________
Name:
Title:
D-1
EXHIBIT
E
FORM
OF
REQUEST FOR RELEASE OF DOCUMENTS
U.S.
Bank
National Association,
as
Trustee
00
Xxxxxxxxxx Xxxxxx
Mailcode:
EP-MN-WS3D
Xx.
Xxxx,
Xxxxxxxxx 00000
|
Re:
|
Pooling
and Servicing Agreement dated as of July 1, 2007, among Bayview
Financial Securities Company, LLC,
as depositor, Xxxxx Fargo Bank, N.A., as master servicer, and U.S.
Bank
National Association, as trustee (the
“Pooling and Servicing
Agreement”)
|
In
connection with the administration of Mortgage Loans held by you as Trustee,
we
hereby request the release, and acknowledge receipt, of the [specify documents]
for the Mortgage Loans described below, for the reason indicated.
Mortgagor’s
Name Address and Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents
(check
one):
1. Mortgage
Loan
Paid in
Full. (All amounts received in connection therewith have been credited to the
Collection Account and remitted to the Trustee for deposit into the Certificate
Distribution Account pursuant to the Pooling and Servicing
Agreement.)
2. Mortgage
Loan Liquidated. (All proceeds of foreclosure, insurance or other liquidation
have been finally received and credited to the Collection Account and remitted
to the Trustee for deposit into the Certificate Distribution Account pursuant
to
the Pooling and Servicing Agreement.)
3. Mortgage
Loan
in
foreclosure or another method of liquidation pursuant to the Pooling and
Servicing Agreement.
4. Mortgage
Loan subject to documentation corrections for errors and ambiguities. (The
documentation released pursuant to this Request for Release of Documents has
errors or ambiguities that require correction and such documentation shall
be
corrected in a prompt manner and returned to the Trustee in accordance with
the
Pooling and Servicing Agreement; provided,
however,
that no
more than one hundred Mortgage Files shall be released at any one
time.)
E-1
5.
Mortgage
Loan repurchased pursuant to Section 2.03 of the Pooling and Servicing
Agreement. (The Purchase Price, or the Substitution Amount, if any, has been
credited to the Collection Account and remitted to the Trustee for deposit
into
the Certificate Distribution Account pursuant to the Pooling and Servicing
Agreement.)
|
6.
|
Subject
to the approval of the Trustee set forth below, other release
(explain):
|
If
box 1,
2 or 5 above is checked, and if all or part of the Mortgage Files were
previously released to Bayview Financial Securities Company, LLC, please release
to Bayview
Financial Securities Company, LLC
its
previous request and receipt on file with you, as well as any additional
documents in your possession relating to the specified Mortgage
Loan.
If
box 3
or 4 above is checked, upon the return of all of the above documents to you
as
the Trustee, please acknowledge your receipt by signing in the space indicated
below, and returning this form.
If
box 6
above is checked, and the Mortgage Loan is being foreclosed, the Mortgage File
will be returned when no longer required for such purpose.
E-2
Capitalized
terms used and not otherwise defined herein shall have the meanings set forth
in
the Pooling and Servicing Agreement.
[SERVICER][SELLER]
By:
Name:
Title:
Date:
E-3
EXHIBIT
F
Class
A-IO Schedule
|
Distribution
Date
occurring
in:
|
A-IO(1)
Component Interest
Rate
(%):
|
A-IO(1)
Component Notional Balance: the lesser of (i) the Pool Balance for
Pool 1
and (ii) the following
amounts($):
|
A-IO(2)
Component Interest
Rate (%):
|
A-IO(2)
Component Notional Balance: the lesser of (i) the Pool Balance for
Pool 2
and (ii) the
following amounts ($):
|
|||||||||
|
August
2007
|
1.887
|
%
|
25,448,569.29
|
2.500
|
%
|
54,448,365.14
|
|||||||
|
September
2007
|
2.067
|
%
|
24,163,237.60
|
3.500
|
%
|
51,698,339.87
|
|||||||
|
October
2007
|
2.143
|
%
|
22,942,792.54
|
3.500
|
%
|
49,087,142.47
|
|||||||
|
November
2007
|
1.850
|
%
|
21,783,724.05
|
3.500
|
%
|
45,612,123.33
|
|||||||
|
December
2007
|
2.160
|
%
|
20,683,081.97
|
3.500
|
%
|
45,247,529.12
|
|||||||
|
January
2008
|
1.322
|
%
|
19,637,921.73
|
3.500
|
%
|
40,930,614.96
|
|||||||
|
February
2008
|
1.552
|
%
|
18,645,196.68
|
3.500
|
%
|
37,268,691.79
|
|||||||
|
March
2008
|
1.477
|
%
|
17,701,864.47
|
3.500
|
%
|
35,340,857.08
|
|||||||
|
April
2008
|
1.152
|
%
|
16,806,117.20
|
3.500
|
%
|
34,148,103.17
|
|||||||
|
May
2008
|
1.439
|
%
|
15,955,539.14
|
3.500
|
%
|
32,328,252.96
|
|||||||
|
June
2008
|
1.541
|
%
|
15,147,817.07
|
3.500
|
%
|
30,690,562.26
|
|||||||
|
July
2008
|
1.450
|
%
|
14,380,798.97
|
3.500
|
%
|
29,411,361.30
|
|||||||
|
August
2008
|
2.815
|
%
|
13,652,454.38
|
4.060
|
%
|
29,210,043.67
|
|||||||
|
September
2008
|
2.084
|
%
|
12,871,734.11
|
4.060
|
%
|
27,730,405.32
|
|||||||
|
October
2008
|
1.120
|
%
|
11,958,181.56
|
4.060
|
%
|
26,325,406.59
|
|||||||
|
November
2008
|
2.914
|
%
|
11,109,341.86
|
4.060
|
%
|
24,991,125.74
|
|||||||
|
December
2008
|
1.890
|
%
|
10,320,638.73
|
4.060
|
%
|
24,357,516.65
|
|||||||
|
January
2009
|
3.211
|
%
|
9,587,819.02
|
4.060
|
%
|
22,521,336.47
|
|||||||
|
February
2009
|
3.150
|
%
|
8,906,930.00
|
4.060
|
%
|
21,379,092.72
|
|||||||
|
March
2009
|
2.300
|
%
|
8,274,298.00
|
4.060
|
%
|
20,294,573.87
|
|||||||
|
April
2009
|
3.950
|
%
|
7,686,508.89
|
4.060
|
%
|
19,898,115.59
|
|||||||
|
May
2009
|
4.714
|
%
|
7,140,389.74
|
4.060
|
%
|
18,113,881.97
|
|||||||
|
June
2009
|
4.817
|
%
|
6,632,991.72
|
4.060
|
%
|
17,012,208.81
|
|||||||
|
July
2009
|
4.922
|
%
|
6,161,574.36
|
4.060
|
%
|
15,853,574.00
|
|||||||
|
August
2009
|
4.540
|
%
|
5,723,590.85
|
4.060
|
%
|
14,601,013.76
|
|||||||
|
September
2009
|
5.139
|
%
|
5,316,674.39
|
4.060
|
%
|
13,390,660.78
|
|||||||
|
October
2009
|
5.176
|
%
|
4,938,625.41
|
4.060
|
%
|
12,260,197.25
|
|||||||
|
November
2009
|
5.175
|
%
|
4,587,399.81
|
4.060
|
%
|
11,512,089.11
|
|||||||
|
December
2009
|
5.544
|
%
|
4,261,098.05
|
4.060
|
%
|
10,366,431.66
|
|||||||
|
January
2010
|
5.172
|
%
|
3,957,954.86
|
4.060
|
%
|
9,735,939.00
|
|||||||
|
February
2010 and thereafter
|
0.000
|
0.00
|
0.000
|
%
|
0.00
|
||||||||
F-1
EXHIBIT
G-1
CAP
AGREEMENT
[See
Tab
No. [[●]]
G-1-1
EXHIBIT
G-2
SWAP
AGREEMENT
[See
Tab
No. [[●]]]
G-2-1
EXHIBIT
H
LIST
OF
SERVICING AGREEMENTS
1. Servicing
Agreement dated as of July 1, 2007, between U.S. Bank National Association,
as
trustee (the “Trustee”) and Aurora Loan Services LLC (“Aurora”), as servicer,
and acknowledged by Xxxxx Fargo Bank, N.A., as master servicer (the “Master
Servicer”).
2. Servicing
Agreement dated as of July 1, 2007, between Bayview Financial, L.P. (the
“Seller”) and Bayview Loan Servicing, LLC (“BLS”), as servicer.
3. Mortgage
Loan Purchase and Servicing Agreement dated as of December 2, 2005, between
the
Seller and CitiMortgage, Inc. (“CitiMortgage”), together with (i) the
Assignment, Assumption and Recognition Agreement dated as of July 1, 2007,
among
Bayview Financial Securities Company, LLC (the “Depositor”), the Seller and
CitiMortgage and (ii) the Assignment, Assumption and Recognition Agreement
dated
as of July 1, 2007, among the Depositor, the Trustee and CitiMortgage, and
acknowledged by the Master Servicer.
4. Flow
Servicing Agreement (Non-Full Recourse) dated as of May 1, 2007, between the
Seller and Manufacturers and Traders Trust Company (a/k/a M&T Bank) (as
successor by merger with M&T Mortgage Corporation), as servicer, together
with (i) the Confirmation Agreement dated as of July 1, 2007, among the
Depositor, the Seller and M&T Bank, (ii) the Assignment, Assumption and
Recognition Agreement dated as of July 1, 2007, among the Seller, the Depositor
and M&T Bank and (iii) the Assignment, Assumption and Recognition Agreement
dated as of July 1, 2007, among the Depositor, the Trustee and M&T Bank, and
acknowledged by the Master Servicer.
5. Reconstituted
Servicing Agreement dated as of July 1, 2007, between Washington Mutual Mortgage
Securities Corp. (“WMMSC”), as servicer, and the Trustee, and acknowledged by
the Master Servicer.
6. Amended
and Restated Flow Servicing Agreement by and between Xxxxx Fargo Bank, N.A.
(“Xxxxx Fargo”) and the Seller, dated as of May 1, 2006, together with (i) the
Confirmation Agreement dated as of July 1, 2007, between the Seller and Xxxxx
Fargo, and acknowledged by BLS (ii) the Assignment, Assumption and Recognition
Agreement dated as of July 1, 2007, among the Seller, the Depositor and Xxxxx
Fargo and (iii) the Assignment, Assumption and Recognition Agreement dated
as of
July 1, 2007, among the Depositor, the Trustee and Xxxxx Fargo, and acknowledged
by the Master Servicer.
H-1
EXHIBIT
I
[Reserved]
I-1
EXHIBIT
J
NON-SERVICER
OBLIGATED MORTGAGE LOANS
(None)
J-1
EXHIBIT
K
FORM
OF
INVESTMENT LETTER
FOR
QUALIFIED INSTITUTIONAL BUYERS
date
Bayview
Financial Securities Company, LLC
0000
Xxxxx xx Xxxx Xxxxxxxxx, 5th Floor
Coral
Gables, Florida 33146
U.S.
Bank
National Association,
as
Trustee
00
Xxxxxxxxxx Xxxxxx
Mailcode:
EP-MN-WS3D
Xx.
Xxxx,
Xxxxxxxxx 00000
Mortgage
Pass-Through Certificates, Series 2007-B(the “Certificates”)
Ladies
and Gentlemen:
In
connection with our acquisition of the above-referenced certificates, we certify
that (a) we understand that the Certificates have not been 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 a “qualified
institutional buyer” as that term is defined in Rule 144A under the Act (a
“QIB”) as that term is defined below 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 and we are able to bear the economic
risks of such an investment, (c) we understand that each proposed purchaser
of
Certificates is responsible for making its own independent review of such
information as it deems relevant to its investment decision and we have had
the
opportunity to ask questions of and receive answers from the transferor
concerning the purchase of the Certificates and all matters relating thereto
or
any additional information deemed necessary to our decision to purchase the
Certificates and we have been furnished with, and have had an opportunity to
review, a copy of the Pooling and Servicing Agreement dated as of July 1, 2007,
among Bayview Financial Securities Company, LLC, as depositor, Xxxxx Fargo
Bank,
N.A., as master servicer, and U.S. Bank National Association as trustee, (d)
we
are acquiring the Certificates for investment for our own account, or for the
accounts of other qualified institutional buyers, 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), (e) we understand that the certificates evidencing the Certificates
purchased by us will bear one or more legends in substantially the form set
forth in Exhibit A of the Pooling and Servicing Agreement, (f) we have not,
nor
has anyone acting on our behalf, offered, transferred, pledged, sold or
otherwise disposed of the Certificates or any interest in the Certificates,
or
solicited any offer to buy, transfer, pledge or otherwise dispose of the
Certificates or any interest in the Certificates from any person in any manner,
or made any general solicitation by means of general advertising or in any
other
manner, or taken any other action that would constitute a distribution of the
Certificates under the Act or that would render the disposition of the
Certificates a violation of Section 5 of the Act or any state securities laws
or
require registration pursuant thereto, and we will not act, or authorize any
person to act, in such manner with respect to the Certificates, 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 and in compliance with any relevant state
securities laws 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) we have informed the
purchaser or transferee of such Certificate of the transfer restrictions
applicable to such Certificate, (3) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially
the
same effect as this certificate and (4) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling
and
Servicing Agreement.
K-1
We
agree
to indemnify the Depositor, the Master Servicer and the Trustee against any
liability that may result if we sell or transfer such Certificate to a purchaser
or transferee who does not comply with any conditions for transfer set forth
in
the Pooling and Servicing Agreement.
We
are
duly authorized to purchase the Certificates and our purchase of investments
having the characteristics of the Certificates is authorized under, and not
directly or indirectly in contravention of, any law, charter, trust instrument
or other operative document, investment guidelines or list of permissible or
impermissible investments that is applicable to us; and we understand that
by
virtue of our acceptance of the Certificates, we assent to the terms, provisions
and conditions of the Pooling and Servicing Agreement.
Very
truly yours,
[Name
of
Transferee]
By:
Authorized
Officer
K-2
EXHIBIT
L
FORM
OF
ERISA TRANSFER AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of ______________ (the “Investor”), a
[corporation duly organized] and existing under the laws of __________, on
behalf of which he makes this affidavit.
2. In
the
case of an ERISA-Restricted Certificate, the Investor either (a) is not, and
on
___________ [date of transfer] will not be, an employee benefit plan or other
retirement arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the “Code”), (collectively, a “Plan”) or a
person acting on behalf of any such Plan or investing the assets of any such
Plan; (b) if the ERISA-Restricted Certificate has been the subject of an
ERISA-Qualifying Underwriting, is an insurance company that is purchasing the
Certificate with funds contained in an “insurance company general account” as
defined in Section V(e) of Prohibited Transaction Class Exemption (“PTCE”) 95-60
and the purchase and holding of the Certificate are covered under Sections
I and
III of PTCE 95-60; or (c) herewith delivers to the Trustee an opinion of
counsel satisfactory to the Trustee, to the effect that the purchase or holding
of such Certificate by the Investor will not constitute or result in any
non-exempt prohibited transactions under Section 406 of ERISA or Section 4975
of
the Code and will not subject the Trustee, the Master Servicer, any Servicer,
the Seller or the Depositor to any obligation in addition to those undertaken
by
such entities in the Pooling and Servicing Agreement, which opinion of counsel
shall not be an expense of the Trust Fund or the above parties.
3. In
the
case of an ERISA-Restricted Trust Certificate, prior to the termination of
the
Swap Agreement or while any amounts received from the Swap Counterparty under
the Swap Agreement remain on deposit in the Reserve Fund, the Investor either
(a) is not, and on ___________ [date of transfer] will not be (i) a Plan or
a
person acting on behalf of any such Plan or using the assets of any such Plan
to
effect such transfer or (ii) the acquisition and holding of this Certificate
are
eligible for exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX
00-00, XXXX 96-23 or the non-fiduciary service provider exemption under Section
408(b)(17) of ERISA.
4. The
Investor hereby acknowledges that under the terms of the Pooling and Servicing
Agreement dated as of July 1, 2007 (the “Agreement”), by
and
among Bayview Financial Securities Company, LLC, as Depositor, Xxxxx Fargo
Bank,
N.A., as Master Servicer and U.S. Bank National Association, as
Trustee,
no
transfer of the ERISA-Restricted Certificates shall be permitted to be made
to
any person unless the Trustee has received a certificate from such transferee
in
the form hereof.
L-1
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________ 20___.
_________________________________
[Investor]
By:______________________________
Name:
Title:
ATTEST:
_____________________________
|
STATE
OF
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF
|
)
|
Personally
appeared before me the above-named ________________, known or proved to me
to be
the same person who executed the foregoing instrument and to be the
____________________ of the Investor, and acknowledged that he executed the
same
as his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of _________ 20___.
______________________________
NOTARY
PUBLIC
My
commission expires the
_____
day
of __________ 20___.
L-2
EXHIBIT
M
FORM
OF
CERTIFICATION TO BE PROVIDED
TO
DEPOSITOR BY MASTER SERVICER
Mortgage
Pass-Through Certificates, Series 2007-B
Xxxxx
Fargo Bank, N.A., as master servicer (the “Master Servicer”) of the Bayview
Financial Mortgage Pass-Through Trust 2007-B Mortgage Pass-Through Certificates,
Series 2007-B, hereby certifies to [ ] (the
“[ ]”), and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
|
(i)
|
The
Master Servicer has reviewed the annual report on Form 10-K for the
fiscal
year [ ], and all reports on Form 10-D (or other prescribed form)
containing distribution reports filed in respect of periods included
in
the year covered by that annual report, relating to the above-referenced
trust;
|
|
(ii)
|
Based
on the Master Servicer’s knowledge, the information in these distribution
reports prepared by the Master Servicer under the Pooling and Servicing
Agreement, 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 light of the circumstances under which such statements
were made, not misleading as of the last day of the period covered
by that
annual report; and
|
|
(iii)
|
Based
on the Master Servicer’s knowledge, the distribution information required
to be provided by the Trustee under the Pooling and Servicing Agreement
is
included in these reports.
|
Date:_____________________________________
Xxxxx
Fargo Bank, N.A., as Master Servicer
By:______________________________________
[Name]
[Title]
M-1
EXHIBIT
N
RESIDUAL
CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
______________________
Date
Mortgage
Pass-Through Certificates, Series 2007-B
This
letter is delivered to you in connection with the sale by______________(the
“Seller”) to ___________(the “Purchaser”) of _______% Percentage Interest of
Bayview Financial Mortgage Pass-Through Trust 2007-B Mortgage Pass-Through
Certificates, Series 2007-B, [Class R/Class RL] (the “Certificate”), pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”) dated as of July 1, 2007, among Bayview Financial
Securities Company, LLC, as depositor (the “Depositor”), Xxxxx Fargo Bank, N.A.,
as master servicer (the “Master Servicer”), and U.S. Bank National Association,
as trustee (the “Trustee”). All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement. The
Seller hereby certifies, represents and warrants to, and covenants with the
Depositor, the Master Servicer and the Trustee that:
1. No
purpose of the Seller relating to the sale of the Certificate by the Seller
to
the Purchaser is or will be to enable the Seller to impede the assessment or
collection of tax.
2. The
Seller understands that the Purchaser has delivered to the Trustee, the Master
Servicer and the Depositor a transferee affidavit and agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit O. The Seller does
not know or believe that any representation contained therein is
false.
3. The
Seller has no actual knowledge that the Purchaser is not a Permitted
Transferee.
4. The
Seller has no actual knowledge that the Purchaser would be unwilling or unable
to pay taxes due on its share of the taxable income attributable to the
Certificates.
5. At
the
time of this transfer (I) the Seller has conducted a reasonable investigation
of
the financial condition of the Purchaser and, as a result of the investigation,
found that the Purchaser has historically paid its debts as they came due,
and
found no significant evidence to indicate that the Purchaser will not continue
to pay its debts as they come due in the future, (II) the Purchaser represents
that it will not cause income from the Certificates to be attributable to a
foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of the Purchaser or another U.S. Person and (III)
either (A) the Seller both (1) has determined all of the following: (i) at
the
time of the transfer, and at the close of each of the Purchaser’s two fiscal
years preceding the year of transfer, the Purchaser’s gross assets for financial
reporting purposes exceed $100 million and its net assets for such purposes
exceed $10 million (disregarding, for purposes of determining gross or net
assets, the obligation of any person related to the Purchaser within the meaning
of section 860L(g) of the Code or any other asset if a principal purpose for
holding or acquiring that asset is to permit the Purchaser to satisfy this
minimum gross asset or net asset requirement), (ii) the Purchaser is a domestic
C corporation for United States federal income tax purposes that is not for
such
purposes an exempt corporation, a regulated investment company, a real estate
investment trust, a REMIC, or a cooperative organization to which part I of
subchapter T of the Code applies, (iii) there are no facts or circumstances
on
or before the date of transfer (or anticipated) which would reasonably indicate
that the taxes associated with the Certificates will not be paid, (iv) the
Purchaser is not a foreign branch of a domestic corporation, and (v) the
transfer does not involve a transfer or assignment to a foreign branch of a
domestic corporation (or any other arrangement by which any Certificate is
at
any time subject to net tax by a foreign country or U.S. possession) and the
Purchaser will not hereafter engage in any such transfer or assignment (or
any
such arrangement), and (2) does not know or have reason to know that the
Purchaser will not honor the restrictions on subsequent transfers of any
Certificate described in paragraph 12 of the Transferee’s Transfer Affidavit, or
(B) the Seller has determined that the present value of the anticipated tax
liabilities associated with the holding of the Certificates does not exceed
the
sum of (1) the present value of any consideration given to the Purchaser to
acquire the Certificates, (2) the present value of the expected future
distributions on the Certificates, and (3) the present value of the anticipated
tax savings associated with holding the Certificates as the REMIC generates
losses (having made such determination by (I) assuming that the Purchaser pays
tax at a rate equal to the highest rate of tax specified in Section 11(b)(1)
of
the Code (provided that, if the Purchaser 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, then the Purchaser may use the tax rate specified in Section
55(b)(1)(B) of the Code), and (II) utilizing a discount rate for present
valuation purposes equal to the Federal short-term rate prescribed by Section
1274(d) of the Code.
N-1
6. The
Purchaser has represented to the Seller that, if the Certificate constitutes
a
noneconomic residual interest, it (i) understands that as holder of a
noneconomic residual interest it may incur tax liabilities in excess of any
cash
flows generated by the interest, and (ii) intends to pay taxes associated with
its holding of the Certificates as they become due.
The
Seller understands that the transfer of the Certificates may not be respected
for United States income tax purposes (and the Seller may continue to be liable
for United States income taxes associated therewith) unless there is compliance
with the standards of paragraph 5 above as to any transfer.
N-2
We
agree
to indemnify the Depositor, the Master Servicer and the Trustee against any
liability that may result if we sell or transfer a Certificate to a purchaser
or
transferee who does not comply with any conditions for transfer set forth in
the
Pooling and Servicing Agreement.
Very
truly yours,
_______________________________
Name:
Title:
N-3
EXHIBIT
O
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
|
STATE
OF
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
|
1.
|
That
he [she] is [title of officer] ________________________ of [name
of
Purchaser] _________________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly organized
and
existing under the laws of the [State of __________] [United States],
on
behalf of which he [she] makes this
affidavit.
|
|
2.
|
That
the Purchaser’s Taxpayer Identification Number is
[ ].
|
|
3.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the
“Code”) and will not be a “disqualified organization” as of [date of
transfer], and that the Purchaser is not acquiring a Residual Certificate
(as defined in the Agreement) for the account of, or as agent (including
a
broker, nominee, or other middleman) for, any person or entity from
which
it has not received an affidavit substantially in the form of this
affidavit. For these purposes, a “disqualified organization” means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality
of any of the foregoing (other than an instrumentality if all of
its
activities are subject to tax and a majority of its board of directors
is
not selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons
in
rural areas as described in Code Section 1381(a)(2)(C), any “electing
large partnership” within the meaning of Section 775 of the Code, or any
organization (other than a farmers’ cooperative described in Code Section
521) that is exempt from federal income tax unless such organization
is
subject to the tax on unrelated business income imposed by Code Section
511.
|
|
4.
|
The
Purchaser either (a) is not, and on ___________ [date of transfer]
will
not be, an employee benefit plan or other retirement arrangement
subject
to Section 406 of the Employee Retirement Income Security Act of
1974, as
amended (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986,
as amended (the “Code”), (collectively, a “Plan”) or a person acting on
behalf of any such Plan or investing the assets of any such Plan
to
acquire a Residual Certificate; (b) if a Residual Certificate has
been the subject of an ERISA-Qualifying Underwriting, is an insurance
company that is purchasing the Certificate with funds contained in
an
“insurance company general account” as defined in Section V(e) of
Prohibited Transaction Class Exemption (“PTCE”) 95-60 and the purchase and
holding of a Residual Certificate are covered under Sections I and
III of
PTCE 95-60; or (c) herewith delivers to the Trustee an opinion of
counsel satisfactory to the Trustee, to the effect that the purchase
or
holding of such Residual Certificate by the Investor will not constitute
or result in any non-exempt prohibited transactions under Section
406 of
ERISA or Section 4975 of the Code and will not subject the Trustee,
the
Master Servicer, any Servicer, the Seller or the Depositor to any
obligation in addition to those undertaken by such entities in the
Pooling
and Servicing Agreement, which opinion of counsel shall not be an
expense
of the Trust Fund or the above
parties.
|
O-1
|
5.
|
That
the Purchaser hereby acknowledges that under the terms of the Pooling
and Servicing Agreement dated as of July 1, 2007 (the “Agreement”), by and
among Bayview Financial Securities Company, LLC, as Depositor, Xxxxx
Fargo
Bank, N.A., as Master Servicer, and U.S. Bank National Association,
as
Trustee with respect to Bayview Financial Mortgage Pass-Through Trust
2007-B Mortgage Pass-Through Certificates,
Series 2007-B, no transfer of the Residual Certificates shall be
permitted
to be made to any person unless the Trustee has received a certificate
from such transferee containing the representations in paragraphs
3 and 4
hereof.
|
|
6.
|
That
the Purchaser does not hold REMIC residual securities as nominee
to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a “Book-Entry
Nominee”).
|
|
7.
|
That
the Purchaser does not have the intention to impede the assessment
or
collection of any federal, state or local taxes legally required
to be
paid with respect to such Residual
Certificate.
|
|
8.
|
That
the Purchaser will not transfer a Residual Certificate to any person
or
entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10
hereof
are not satisfied or that the Purchaser has reason to believe does
not
satisfy the requirements set forth in paragraph 7 hereof, and (ii)
without
obtaining from the prospective Purchaser an affidavit substantially
in
this form and providing to the Trustee a written statement substantially
in the form of Exhibit C to the
Agreement.
|
|
9.
|
That
the Purchaser understands that, as the holder of a Residual Certificate,
the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated
with
holding such Residual Certificate as they become
due.
|
|
10.
|
That
(I) the Purchaser (i) is not a Non-U.S. Person, (ii) is a Non-U.S.
Person
that holds a Residual Certificate in connection with the conduct
of a
trade or business within the United States and has furnished the
transferor and the Trustee with an effective Internal Revenue Service
Form
W-8ECI
(Certificate of Foreign Person’s Claim for Exemption From Withholding on
Income Effectively Connected With the Conduct of a Trade or Business
in
the United States)
or
successor form at the time and in the manner required by the Code
or (iii)
is a Non-U.S. Person that has delivered to the transferor, the Trustee
an
opinion of a nationally recognized tax counsel to the effect that
the
transfer of such Residual Certificate to it is in accordance with
the
requirements of the Code and the regulations promulgated thereunder
and
that such transfer of a Residual Certificate will not be disregarded
for
federal income tax purposes and (II) if Purchaser is a partnership
for
U.S. federal income tax purposes, each person or entity that holds
an
interest (directly, or indirectly through a pass-through entity)
is a
person or entity described in (I). “Non-U.S. Person” means any person
other than a “United States person” within the meaning of Section
7701(a)(30) of the Code.
|
O-2
|
11.
|
The
Purchaser will not cause income from the Residual Certificate to
be
attributable to a foreign permanent establishment or fixed base of
the
Purchaser or another U.S. taxpayer.
|
|
12.
|
The
Purchaser will, in connection with any transfer that it makes of
the
Residual Certificate, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit N to the
Pooling and Servicing Agreement. [The Purchaser hereby agrees that
it will
not make any transfer of any Residual Certificate unless (i) the
transfer
is to an entity which is a domestic C corporation (other than an
exempt
corporation, a regulated investment company, a real estate investment
trust, a REMIC, or a cooperative organization to which part I of
Subchapter T of the Code applies) for federal income tax purposes,
and
(ii) the transfer is in compliance with the conditions set forth
in
paragraph 5 of Exhibit N of the Pooling and Servicing
Agreement.]
|
|
[13.
|
The
Purchaser hereby represents to and for the benefit of the transferor
that
(i) at the time of the transfer, and at the close of each of the
Purchaser’s two fiscal years preceding the year of transfer, the
Purchaser’s gross assets for financial reporting purposes exceed $100
million and its net assets for such purposes exceed $10 million
(disregarding, for purposes of determining gross or net assets, the
obligation of any person related to the Purchaser within the meaning
of
section 860L(g) of the Code or any other asset if a principal purpose
for
holding or acquiring that asset is to permit the Purchaser to satisfy
this
minimum gross asset or net asset requirement), (ii) the Purchaser
is a
domestic C corporation for United States federal income tax purposes
that
is not for such purposes an exempt corporation, a regulated investment
company, a real estate investment trust, a REMIC, or a cooperative
organization to which part I of subchapter T of the Code applies,
(iii)
there are no facts or circumstances on or before the date of transfer
(or
anticipated) which would reasonably indicate that the taxes associated
with the Residual Certificate will not be paid, and (iv) the Purchaser
is
not a foreign branch of a domestic corporation, the transfer does
not
involve a transfer or assignment to a foreign branch of a domestic
corporation (or any other arrangement by which any Residual Certificate
is
at any time subject to net tax by a foreign country or U.S. possession),
and the Purchaser will not hereafter engage in any such transfer
or
assignment (or any such
arrangement).]
|
O-3
|
14.
|
That
the Purchaser agrees to such amendments of the Pooling and Servicing
Agreement as may be required to further effectuate the restrictions
on
transfer of any Residual Certificate to such a “disqualified
organization,” an agent thereof, a Book-Entry Nominee, or a person that
does not satisfy the requirements of paragraph 7 and paragraph 10
hereof.
|
|
15.
|
That
the Purchaser consents to the designation of the Trustee to act as
agent
for the “tax matters person” of each REMIC created by the Trust Fund
pursuant to the Pooling and Servicing
Agreement.
|
We
agree
to indemnify the Depositor, the Master Servicer and the Trustee against any
liability that may result if we sell or transfer a Residual Certificate to
a
purchaser or transferee who does not comply with any conditions for transfer
set
forth in the Pooling and Servicing Agreement.
O-4
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________ 20__.
_________________________________
[name
of
Purchaser]
By:______________________________
Name:
Title:
Personally
appeared before me the above-named [name of officer] ________________, known
or
proved to me to be the same person who executed the foregoing instrument and
to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________ 20__.
NOTARY
PUBLIC
______________________________
COUNTY
OF_____________________
STATE
OF______________________
My
commission expires the _____ day of __________ 20__.
X-0
XXXXXXX
X-0
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the parties listed in the table
below shall address, at a minimum, the criteria identified below as “Applicable
Servicing Criteria” for each such party:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
||
|
Reference
|
Criteria
|
Xxxxx
Fargo Bank
|
Trustee
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
P-1-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
||
|
Reference
|
Criteria
|
Xxxxx
Fargo Bank
|
Trustee
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
X
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
P-1-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
||
|
Reference
|
Criteria
|
Xxxxx
Fargo Bank
|
Trustee
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
||
|
|
|
[NAME
OF
PARTY]
Date: _________________________
By:
________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
ADDITIONAL
FORM 8-K DISCLOSURE
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a
party.
Example:
servicing agreement
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
Depositor
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Example:
servicing agreement
|
Depositor
|
|
Item
1.03 - Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
|
|
· Sponsor
(Seller)
|
Depositor
|
|
· Depositor
|
Depositor
|
|
· Master
Servicer
|
Master
Servicer
|
|
· Affiliated
Servicer
|
Depositor
|
|
· Other
Servicer servicing 20% or more of the pool assets at the time of
the
report
|
Depositor
|
|
· Other
material servicers
|
Depositor
|
|
· Trustee
|
Trustee
|
P-2-1
|
· Significant
Obligor
|
Depositor
|
|
· Credit
Enhancer (10% or more)
|
Depositor
|
|
· Cap
Provider
|
Depositor
|
|
· Swap
Counterparty
|
Depositor
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly report to Certificateholders.
|
Depositor
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Trustee
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Depositor,
Master Servicer, Trustee
|
|
Regulation
AB disclosure about any new servicer or master servicer is also
required.
|
Depositor,
Master Servicer
|
|
Regulation
AB disclosure about any new Trustee is also required.
|
Trustee
|
P-2-2
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as the
Cap
Agreement and the Swap Agreement.
|
Depositor
|
|
Regulation
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the Certificates from the description in the final prospectus,
provide updated Regulation AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Regulation FD Disclosure
|
Depositor
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
Certificateholders
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Depositor
|
P-2-3
EXHIBIT
P-3
ADDITIONAL
FORM 10-D DISCLOSURE
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the monthly report to Certificateholders
|
Servicer,
Trustee
|
|
Any
information required by Item 1121 which is not included on the monthly
report to Certificateholders
|
Servicer
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
|
· Issuing
Entity (Trust Fund)
|
Depositor,
Master Servicer
|
|
· Sponsor
(Seller)
|
Depositor
|
|
· Depositor
|
Depositor
|
|
· Trustee
|
Trustee
|
|
· Master
Servicer
|
Master
Servicer
|
|
· 1110(b)
Originator
|
Depositor
|
|
· Any
1108(a)(2) Servicer (other than the Master Servicer or Trustee)
|
Depositor
|
|
· Any
other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of Certificates by the Sponsor, Depositor or
Issuing
Entity, that are backed by the same asset pool or are
otherwise
issued by the issuing entity, whether or not registered, provide
the sales
and use of proceeds information in Item 701 of Regulation S-K. Pricing
information can be omitted if Certificates were not registered.
|
Depositor
|
P-3-1
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after the expiration of any
grace
period and provision of any required notice)
|
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Depositor
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
Depositor
|
|
· Determining
applicable disclosure threshold
|
Depositor
|
|
· Requesting
required financial information (including any required accountants’
consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
· Determining
current maximum probably exposure
|
Depositor
|
|
· Determining
current significance percentage
|
Depositor
|
|
· Requesting
required financial information (including any required accountants’
consent to the use thereof) or effecting incorporation by reference
|
Depositor
|
P-3-2
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
9: Exhibits
|
|
|
Monthly
Report to Certificateholders
|
Master
Servicer
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
P-3-3
EXHIBIT
P-4
ADDITIONAL
FORM 10-K DISCLOSURE
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Depositor
|
|
Regulation
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Regulation
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
· Determining
applicable disclosure threshold
|
Depositor
|
|
· Requesting
required financial information (including any required accountants’
consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Regulation
AB Item 1115(b): Derivative Counterparty Financial Information
|
|
|
· Determining
current maximum probable exposure
|
Depositor
|
|
· Determining
current significance percentage
|
Depositor
|
|
· Requesting
required financial information (including any required accountants’
consent to the use thereof) or effecting incorporation by reference
|
Depositor
|
P-4-1
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
Depositor
|
|
Regulation
AB Item 1117: Legal Proceedings
|
|
|
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by government
authorities:
|
|
|
· Issuing
Entity (Trust Fund)
|
Master
Servicer
|
|
· Sponsor
(Seller)
|
Depositor
|
|
· Depositor
|
Depositor
|
|
· Trustee
|
Trustee
|
|
· Master
Servicer
|
Master
Servicer
|
|
· 1110(b)
Originator
|
Depositor
|
|
· Any
1108(a)(2) Servicer (other than the Master Servicer or Trustee)
|
Depositor
|
|
· Any
other party contemplated by 1100(d)(1)
|
Depositor
|
|
Regulation
AB item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
|
|
· Master
Servicer
|
Master
Servicer
|
|
· Trustee
|
Trustee
|
|
· Any
other 1108(a)(3) servicer
|
Depositor
|
|
· Any
1110 Originator
|
Depositor
|
|
· Any
1112(b) Significant Obligor
|
Depositor
|
|
· Any
1114 Credit Enhancement Provider
|
Depositor
|
|
· Any
1115 Derivative Counterparty Provider
|
Depositor
|
|
· Any
other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in the arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor,
as to (a)
|
P-4-2
|
· Master
Servicer
|
Master
Servicer
|
|
· Trustee
|
Trustee
|
|
· Any
other 1108(a)(3) servicer
|
Servicer
|
|
· Any
1110 Originator
|
Depositor
|
|
· Any
1112(b) Significant Obligor
|
Depositor
|
|
· Any
1114 Credit Enhancement Provider
|
Depositor
|
|
· Any
1115 Derivative Counterparty Provider
|
Depositor
|
|
· Any
other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
|
Depositor,
as to (a)
|
|
· Master
Servicer
|
Master
Servicer
|
|
· Trustee
|
Trustee
|
|
· Any
other 1108(a)(3) servicer
|
Depositor
|
|
· Any
1110 Originator
|
Depositor
|
|
· Any
1112(b) Significant Obligor
|
Depositor
|
|
· Any
1114 Credit Enhancement Provider
|
Depositor
|
|
· Any
1115 Derivative Counterparty Provider
|
Depositor
|
|
· Any
other 1101(d)(1) material party
|
Depositor
|
X-0-0
XXXXXXX
X-0
ADDITIONAL
DISCLOSURE NOTIFICATION
**SEND
VIA FAX TO (000) 000-0000 AND VIA E-MAIL TO xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
AND VIA OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW
Xxxxx
Fargo Bank, N.A., as Master Servicer
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxxxx - Xxxxxxx 0000-X
Re:
Additional
Form [10-D] [10-K] [8-K] Disclosure Required
Ladies
and Gentlemen:
In
accordance with Section 4.31[(a)] [(b)] [(c)] of the Pooling and Servicing
Agreement dated as of July 1, 2007, among Bayview Financial Securities Company,
LLC, as Depositor, Xxxxx Fargo Bank, N.A., as Master Servicer, and U.S. Bank
National Association, as Trustee, the undersigned, as
[ ], hereby notifies you that certain events have
come to our attention that [will] [may] need to be disclosed on Form [10-D]
[10-K] [8-K].
Description
of Additional [10-D] [10-K] [8-K] Disclosure:
List
of any Attachments hereto to be included in the Additional [10-D] [10-K] [8-K]
Disclosure:
Any
inquiries related to this notification should be directed to
[ ],
phone number: [ ];
e-mail address:
[ ].
[NAME
OF
PARTY],
as
[role]
By:
_________________________
Name:
Title:
P-5-1
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
Sch
I-1
SCHEDULE
I-A
SIMPLE
INTEREST MORTGAGE LOANS
(None)
Sch
I-A-1
SCHEDULE
I-B
PREPAYMENT
PREMIUM CONVEYED MORTGAGE LOANS
Sch
I-B-1
SCHEDULE
I-C
NON-MONTHLY
MORTGAGE LOANS
Sch
I-C-1
SCHEDULE
I-D
CONVERTIBLE
MORTGAGE LOANS
Sch
I-D-1
SCHEDULE
I-E
HOLDBACK
MORTGAGE LOANS
None.
Sch
I-E-1
SCHEDULE
I-F
[Reserved]
Sch
I-F-1
SCHEDULE
I-G
STRIPPED
MORTGAGE LOANS
Sch
I-G-1
SCHEDULE
I-H
60+
DELINQUENT MORTGAGE LOANS
None.
Sch
I-H-1
SCHEDULE
I-I
FORECLOSURE
RESTRICTED LOANS
(None)
Sch
I-I-1
SCHEDULE
II-A
2004-B
RE-SOLD MORTGAGE LOANS
[See
Schedule I-A to Tab No. [[●]]]
Sch
II-A-1
SCHEDULE
II-B
2005-A
RE-SOLD MORTGAGE LOANS
[See
Schedule I-B to Tab No. [[●]]]
Sch
II-B-1
SCHEDULE
II-C
2005-E
RE-SOLD MORTGAGE LOANS
[See
Schedule I-C to Tab No. [[●]]]
Sch
II-C-1
