XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
Depositor
XXXXX FARGO BANK, N.A.,
Master Servicer and Securities Administrator
WILSHIRE CREDIT CORPORATION,
Servicer
and
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2007
----------
Mortgage Pass-Through Certificates, MANA Series 2007-OAR3
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS.................................................... 13
Section 1.02 Accounting............................................ 62
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES.................................................. 62
Section 2.01 Conveyance of Mortgage Loans to Trustee............... 62
Section 2.02 Acceptance of Mortgage Loans by Trustee............... 65
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement............................................. 68
Section 2.04 Substitution of Mortgage Loans........................ 69
Section 2.05 Issuance of Certificates.............................. 70
Section 2.06 Representations and Warranties Concerning the
Depositor............................................. 71
Section 2.07 Representations and Warranties Concerning the Master
Servicer and Securities Administrator................. 72
Section 2.08 Covenants of Wilshire................................. 73
ARTICLE III ADMINISTRATION OF MORTGAGE LOANS............................. 73
Section 3.01 Master Servicer...................................... 73
Section 3.02 REMIC-Related Covenants............................... 74
Section 3.03 Monitoring of Servicers............................... 75
Section 3.04 Fidelity Bond......................................... 76
Section 3.05 Power to Act; Procedures.............................. 76
Section 3.06 Due-on-Sale Clauses; Assumption Agreements............ 77
Section 3.07 [Reserved]............................................ 77
Section 3.08 Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee....................... 77
Section 3.09 Standard Hazard Insurance and Flood Insurance
Policies.............................................. 78
Section 3.10 Presentment of Claims and Collection of Proceeds...... 78
Section 3.11 Maintenance of the Primary Mortgage Insurance
Policies.............................................. 78
Section 3.12 Trustee to Retain Possession of Certain Insurance
Policies and Documents................................ 79
Section 3.13 Realization Upon Defaulted Mortgage Loans............. 79
Section 3.14 Compensation for the Master Servicer.................. 79
Section 3.15 REO Property.......................................... 79
Section 3.16 Annual Statement as to Compliance..................... 80
Section 3.17 Reports on Assessment of Compliance and Attestation... 81
Section 3.18 Periodic Filings...................................... 82
Section 3.19 Compliance with Regulation AB......................... 89
Section 3.20 Servicing Rights Owner................................ 89
ARTICLE IV ACCOUNTS...................................................... 90
Section 4.01 Collection Accounts................................... 90
Section 4.02 Master Servicer Collection Account.................... 91
Section 4.03 Permitted Withdrawals and Transfers from the Master
Servicer Collection Account........................... 92
Section 4.04 Distribution Account.................................. 93
Section 4.05 Permitted Withdrawals and Transfers from the
Distribution Account.................................. 94
ARTICLE V CERTIFICATES................................................... 96
Section 5.01 The Certificates...................................... 96
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.............................. 96
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates..... 100
Section 5.04 Persons Deemed Owners................................. 101
Section 5.05 Access to List of Certificateholders' Names and
Addresses............................................. 101
Section 5.06 Book-Entry Certificates............................... 101
Section 5.07 Notices to Depository................................. 102
Section 5.08 Definitive Certificates............................... 102
Section 5.09 Maintenance of Office or Agency....................... 103
ARTICLE VI PAYMENTS TO CERTIFICATEHOLDERS................................ 103
Section 6.01 Distributions on the Certificates..................... 103
Section 6.02 Distributions......................................... 113
Section 6.03 Statements to Certificateholders...................... 114
Section 6.04 Advances.............................................. 117
Section 6.05 Compensating Interest Payments........................ 117
ARTICLE VII THE MASTER SERVICER AND THE DEPOSITOR........................ 118
Section 7.01 Liabilities of the Master Servicer.................... 118
Section 7.02 Merger or Consolidation of the Master Servicer........ 118
Section 7.03 Indemnification from the Master Servicer and the
Depositor............................................. 118
Section 7.04 Limitations on Liability of the Master Servicer and
Others................................................ 118
Section 7.05 Master Servicer Not to Resign......................... 120
Section 7.06 Successor Master Servicer............................. 120
Section 7.07 Sale and Assignment of Master Servicing............... 120
ARTICLE VIII DEFAULT..................................................... 121
Section 8.01 Events of Default..................................... 121
Section 8.02 Trustee to Act; Appointment of Successor.............. 122
Section 8.03 Notification to Certificateholders.................... 124
Section 8.04 Waiver of Defaults.................................... 124
Section 8.05 List of Certificateholders............................ 124
ARTICLE IX CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR....... 124
Section 9.01 Duties of Trustee..................................... 124
iii
Section 9.02 Certain Matters Affecting the Trustee and the
Securities Administrator.............................. 127
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans........................ 128
Section 9.04 Trustee and Securities Administrator May Own
Certificates.......................................... 129
Section 9.05 Trustee's and Securities Administrator's Fees and
Expenses.............................................. 129
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator......................................... 130
Section 9.07 Insurance............................................. 130
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator......................................... 131
Section 9.09 Successor Trustee and Successor Securities
Administrator......................................... 131
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator......................................... 132
Section 9.11 Appointment of Co-Trustee or Separate Trustee......... 132
Section 9.12 Federal Information Returns and Reports to
Certificateholders; REMIC Administration.............. 134
ARTICLE X TERMINATION.................................................... 142
Section 10.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans........................................ 142
Section 10.02 Final Distribution on the Certificates................ 143
Section 10.03 Additional Termination Requirements................... 144
ARTICLE XI MISCELLANEOUS PROVISIONS...................................... 145
Section 11.01 Intent of Parties..................................... 145
Section 11.02 Amendment............................................. 145
Section 11.03 Recordation of Agreement.............................. 147
Section 11.04 Limitation on Rights of Certificateholders............ 147
Section 11.05 Acts of Certificateholders............................ 148
Section 11.06 Governing Law......................................... 149
Section 11.07 Notices............................................... 149
Section 11.08 Severability of Provisions............................ 150
Section 11.09 Successors and Assigns................................ 150
Section 11.10 Article and Section Headings.......................... 150
Section 11.11 Counterparts.......................................... 150
Section 11.12 Notice to Rating Agencies............................. 150
Section 11.13 Third Party Rights.................................... 150
ARTICLE XII PROHIBITED TRANSACTIONS...................................... 151
Section 12.01 [Reserved]............................................ 151
Section 12.02 Prohibited Transactions and Activities................ 151
Section 12.03 Indemnification with Respect to Prohibited
Transactions or Loss of REMIC Status.................. 151
Section 12.04 REO Property.......................................... 151
ARTICLE XIII SERVICING OF MORTGAGE LOANS................................. 152
iv
Section 13.01 Wilshire to Service Mortgage Loans.................... 152
Section 13.02 Servicing and Subservicing; Enforcement of the
Obligations of Servicers.............................. 154
Section 13.03 Rights of the Depositor and the Trustee in Respect of
the Servicer.......................................... 155
Section 13.04 Master Servicer to Act as Servicer.................... 155
Section 13.05 Collection of Mortgage Loan Payments; Collection
Account; Certificate Account.......................... 156
Section 13.06 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts....................................... 158
Section 13.07 Access to Certain Documentation and Information
Regarding the Mortgage Loans.......................... 159
Section 13.08 Permitted Withdrawals from the Collection Account and
Certificate Account................................... 159
Section 13.09 [Reserved]............................................ 161
Section 13.10 Maintenance of Hazard Insurance....................... 161
Section 13.11 Enforcement of Due-On-Sale Clauses; Assumption
Agreements............................................ 162
Section 13.12 Realization Upon Defaulted Mortgage Loans;
Determination of Excess Proceeds; Special Loss
Mitigation............................................ 163
Section 13.13 Release of Mortgage Files............................. 167
Section 13.14 Documents, Records and Funds in Possession of
Servicer to be Held for the Trustee................... 168
Section 13.15 Servicing Compensation................................ 168
Section 13.16 Access to Certain Documentation....................... 169
Section 13.17 Subordination of Liens................................ 169
Section 13.18 Information to the Master Servicer.................... 170
Section 13.19 Indemnification....................................... 170
Section 13.20 Solicitation.......................................... 170
Section 13.21 High Cost Mortgage Loans.............................. 171
Section 13.22 Advances.............................................. 171
Section 13.23 Reduction of Servicing Compensation in Connection
with Prepayment Interest Shortfalls................... 172
Section 13.24 Special Servicing Agreements.......................... 173
ARTICLE XIV THE DEPOSITOR AND THE SERVICER............................... 173
Section 14.01 Respective Liabilities of the Depositor and the
Servicer.............................................. 173
Section 14.02 Merger or Consolidation of the Depositor or the
Servicer.............................................. 173
Section 14.03 Limitation on Liability of the Depositor, the
Servicers and Others.................................. 173
Section 14.04 Limitation on Resignation of Servicer................. 174
Section 14.05 Errors and Omissions Insurance; Fidelity Bonds........ 174
ARTICLE XV DEFAULT; TERMINATION OF A SERVICER............................ 175
v
Section 15.01 Servicer Events of Default............................ 175
Section 15.02 Master Servicer to Act; Appointment of Successor...... 177
ARTICLE XVI Compliance With Regulation AB................................ 178
Section 16.01 Intent of the Parties; Reasonableness................. 178
Section 16.02 [Reserved]............................................ 178
Section 16.03 Information to Be Provided by the Servicer............ 178
Section 16.04 Servicer Compliance Statement......................... 179
Section 16.05 Report on Assessment of Compliance and Attestation.... 180
Section 16.06 Use of Subservicers and Subcontractors................ 181
Section 16.07 Indemnification; Remedies............................. 182
vi
EXHIBITS
Exhibit A-1 - Form of Senior Certificates and Class M Certificates
Exhibit A-2 - Form of Class B Certificates
Exhibit A-3 - Form of Class R Certificate
Exhibit A-4 - Form of Class P Certificate
Exhibit A-5 - Form of Class C Certificate
Exhibit B - Mortgage Loan Schedule
Exhibit C - [Reserved]
Exhibit D - Request for Release of Documents
Exhibit E-1 - Form of Transferee's Letter
Exhibit E-2 - Form of Transferor Certificate
Exhibit F-1 - Form of Transferor Representation Letter
Exhibit F-2 - Form of Investor Representation Letter
Exhibit F-3 - Form of Rule 144A Letter
Exhibit F-4 - Form of Middleman Representation Letter
Exhibit G - Form of Custodial Agreement
Exhibit H - One-Month LIBOR Corridor Table
Exhibit I - Final Maturity Reserve Account Schedule
Exhibit J - Mortgage Loan Purchase Agreement
Exhibit K - Servicing Criteria To Be Addressed in Assessment of Compliance
Exhibit L - Form of Xxxxxxxx-Xxxxx Certification
Exhibit M - Form of Back-up Xxxxxxxx-Xxxxx Certification
Exhibit N - Form of Corridor Contract
Exhibit O - Additional Disclosure Notification
Exhibit P - Form of Item 1123 Certification of Servicer
Exhibit Q-1 - Additional Form 10-D Disclosure
Exhibit Q-2 - Additional Form 10-K Disclosure
Exhibit Q-3 - Form 8-K Disclosure Information
Exhibit R - Form of Swap Agreement
Exhibit S - [Reserved]
Exhibit T - [Reserved]
Exhibit U-1 - Standard File Layout (Master Servicing)
Exhibit U-2 - Standard File Layout (Delinquency Reporting)
Exhibit U-3 - Calculation of Realized Loss/Gain Form 332 - Instruction Sheet
Exhibit V - Servicing Criteria to be addressed in Assessment of Compliance
vii
This Pooling and Servicing Agreement, dated as of June 1, 2007 (this
"Agreement" or this "Pooling and Servicing Agreement"), among XXXXXXX XXXXX
MORTGAGE INVESTORS, INC., as depositor (the "Depositor"), XXXXX FARGO BANK,
N.A., as master servicer (in such capacity, the "Master Servicer") and as
securities administrator (in such capacity, the "Securities Administrator"),
WILSHIRE CREDIT CORPORATION, as a servicer (a "Servicer" and "Wilshire"), and
HSBC BANK USA, NATIONAL ASSOCIATION, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from the Sponsor and at the
Closing Date is the owner of the Mortgage Loans and the other related property
being conveyed by the Depositor to the Trustee hereunder on behalf of the
Issuing Entity for inclusion in the Trust Fund. On the Closing Date, the
Depositor will acquire the Certificates from the Trustee as consideration for
the Depositor's transfer to the Issuing Entity of the Mortgage Loans and the
other related property constituting that portion of the Trust Fund relating to
the Certificates. The Depositor has duly authorized the execution and delivery
of this Agreement to provide for the conveyance to the Issuing Entity of the
Mortgage Loans and the other related property constituting that portion of the
Trust Fund relating to the Certificates. All covenants and agreements made by
the Sponsor in the Mortgage Loan Purchase Agreement and in this Agreement and
all covenants and agreements made by the Depositor, the Trustee, the Securities
Administrator, Wilshire and the Master Servicer herein with respect to the
Mortgage Loans and the other related property constituting that portion of the
Trust Fund relating to the Certificates are for the benefit of the Holders from
time to time of the Certificates and, to the extent provided herein, the NIMs
Insurer. The Depositor, the Trustee, the Securities Administrator, Wilshire and
the Master Servicer are entering into this Agreement, and the Trustee on behalf
of the Issuing Entity is accepting the Trust Fund created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
As provided herein, the Securities Administrator shall elect that the Trust
Fund be treated for federal income tax purposes as consisting of (i) three real
estate mortgage investment conduits, (ii) the right to receive payments
distributable to the Class P Certificates, (iii) the Corridor Contract and the
Corridor Contract Account, (iv) the grantor trusts described in Section 9.12
hereof, (v) the Supplemental Interest Trust, which in turn will hold the Swap
Agreement and (vi) the Final Maturity Reserve Account. The SWAP REMIC will
consist of all of the assets constituting the Trust Fund (other than the assets
described in clauses (ii), (iii), (iv), (v) and (vi) above, other than the SWAP
REMIC Regular Interests and other than the Lower Tier REMIC Regular Interests)
and will be evidenced by the SWAP REMIC Regular Interests (which will be
uncertificated and will represent the "regular interests" in the SWAP REMIC) and
the Class SWR Interest as the single "residual interest" in the SWAP REMIC. The
Lower Tier REMIC will consist of SWAP REMIC Regular Interests and will be
evidenced by the Lower Tier REMIC Regular Interests (which will be
uncertificated and will represent the "regular interests" in the Lower Tier
REMIC) and the Class LTR Interest as the single "residual interest" in the Lower
Tier REMIC. The Trustee will hold the Lower Tier REMIC Regular Interests. The
Upper Tier REMIC will consist of the Lower Tier REMIC Regular Interests and will
be evidenced by the REMIC Regular Interests (which will represent the "regular
interests" in the Upper Tier REMIC) and the Residual Interest as the single
"residual interest" in the Upper Tier REMIC. The Class R Certificate will
represent beneficial ownership of the Class SWR Interest,
the Class LTR Interest and the Residual Interest. The "latest possible maturity
date" for federal income tax purposes of all interests created hereby will be
the Latest Possible Maturity Date.
THE SWAP REMIC
The following table sets forth the designations, initial principal balances
and interest rates for each interest in the SWAP REMIC:
Class Initial Principal Balance Interest Rate
----- ------------------------- -------------
SW-Z $18,397,133.160 (1)
SW-1A $ 3,848,256.500 (2)
SW-1B $ 3,848,256.500 (3)
SW-2A $ 3,450,790.000 (2)
SW-2B $ 3,450,790.000 (3)
SW-3A $ 3,204,590.500 (2)
SW-3B $ 3,204,590.500 (3)
SW-4A $ 3,089,356.500 (2)
SW-4B $ 3,089,356.500 (3)
SW-5A $ 2,784,671.000 (2)
SW-5B $ 2,784,671.000 (3)
SW-6A $ 2,533,802.000 (2)
SW-6B $ 2,533,802.000 (3)
SW-7A $ 2,519,043.500 (2)
SW-7B $ 2,519,043.500 (3)
SW-8A $ 2,896,470.000 (2)
SW-8B $ 2,896,470.000 (3)
SW-9A $ 3,168,428.500 (2)
SW-9B $ 3,168,428.500 (3)
SW-10A $ 3,226,155.000 (2)
SW-10B $ 3,226,155.000 (3)
SW-11A $ 3,321,322.500 (2)
SW-11B $ 3,321,322.500 (3)
SW-12A $ 3,249,751.500 (2)
SW-12B $ 3,249,751.500 (3)
SW-13A $ 3,039,825.500 (2)
SW-13B $ 3,039,825.500 (3)
SW-14A $ 2,846,935.000 (2)
SW-14B $ 2,846,935.000 (3)
SW-15A $ 2,609,113.500 (2)
SW-15B $ 2,609,113.500 (3)
SW-16A $ 2,483,489.000 (2)
SW-16B $ 2,483,489.000 (3)
SW-17A $ 2,278,073.000 (2)
SW-17B $ 2,278,073.000 (3)
SW-18A $ 2,062,610.000 (2)
-0-
XX-00X $ 2,062,610.000 (3)
SW-19A $ 2,050,711.000 (2)
SW-19B $ 2,050,711.000 (3)
SW-20A $ 2,422,916.000 (2)
SW-20B $ 2,422,916.000 (3)
SW-21A $ 3,267,598.000 (2)
SW-21B $ 3,267,598.000 (3)
SW-22A $ 4,051,545.500 (2)
SW-22B $ 4,051,545.500 (3)
SW-23A $ 4,011,768.500 (2)
SW-23B $ 4,011,768.500 (3)
SW-24A $ 3,619,054.000 (2)
SW-24B $ 3,619,054.000 (3)
SW-25A $ 3,069,381.000 (2)
SW-25B $ 3,069,381.000 (3)
SW-26A $ 2,659,892.000 (2)
SW-26B $ 2,659,892.000 (3)
SW-27A $ 2,425,591.000 (2)
SW-27B $ 2,425,591.000 (3)
SW-28A $ 2,310,252.500 (2)
SW-28B $ 2,310,252.500 (3)
SW-29A $ 2,148,959.000 (2)
SW-29B $ 2,148,959.000 (3)
SW-30A $ 2,010,162.500 (2)
SW-30B $ 2,010,162.500 (3)
SW-31A $ 1,972,656.500 (2)
SW-31B $ 1,972,656.500 (3)
SW-32A $ 2,192,320.500 (2)
SW-32B $ 2,192,320.500 (3)
SW-33A $ 2,447,059.500 (2)
SW-33B $ 2,447,059.500 (3)
SW-34A $ 2,591,214.500 (2)
SW-34B $ 2,591,214.500 (3)
SW-35A $ 2,766,468.500 (2)
SW-35B $ 2,766,468.500 (3)
SW-36A $ 2,754,418.000 (2)
SW-36B $ 2,754,418.000 (3)
SW-37A $ 3,369,689.500 (2)
SW-37B $ 3,369,689.500 (3)
SW-38A $ 5,010,834.500 (2)
SW-38B $ 5,010,834.500 (3)
SW-39A $ 5,860,214.500 (2)
SW-39B $ 5,860,214.500 (3)
SW-40A $ 7,484,894.500 (2)
SW-40B $ 7,484,894.500 (3)
-0-
XX-00X $ 6,130,322.000 (2)
SW-41B $ 6,130,322.000 (3)
SW-42A $ 5,103,871.000 (2)
SW-42B $ 5,103,871.000 (3)
SW-43A $ 4,382,056.000 (2)
SW-43B $ 4,382,056.000 (3)
SW-44A $ 4,198,775.000 (2)
SW-44B $ 4,198,775.000 (3)
SW-45A $ 4,153,251.500 (2)
SW-45B $ 4,153,251.500 (3)
SW-46A $ 3,981,453.000 (2)
SW-46B $ 3,981,453.000 (3)
SW-47A $ 3,976,462.000 (2)
SW-47B $ 3,976,462.000 (3)
SW-48A $ 3,664,024.500 (2)
SW-48B $ 3,664,024.500 (3)
SW-49A $ 3,120,418.000 (2)
SW-49B $ 3,120,418.000 (3)
SW-50A $ 2,610,764.000 (2)
SW-50B $ 2,610,764.000 (3)
SW-51A $ 2,158,146.500 (2)
SW-51B $ 2,158,146.500 (3)
SW-52A $ 1,872,694.500 (2)
SW-52B $ 1,872,694.500 (3)
SW-53A $ 1,594,176.000 (2)
SW-53B $ 1,594,176.000 (3)
SW-54A $ 1,362,355.000 (2)
SW-54B $ 1,362,355.000 (3)
SW-55A $ 1,215,922.500 (2)
SW-55B $ 1,215,922.500 (3)
SW-56A $ 1,189,456.500 (2)
SW-56B $ 1,189,456.500 (3)
SW-57A $13,850,955.000 (2)
SW-57B $13,850,955.000 (3)
SWR (4) (4)
SW-Coupon Strip (5) (5)
(1) The interest rate on the Class SW-Z Interest shall be a per annum rate
equal to the Net WAC.
(2) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest ending with the designation "A" shall be a per annum rate equal to
2 times the Net WAC, subject to a maximum rate of 2 times the REMIC Swap
Rate for such Distribution Date.
(3) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest ending with the designation "B" shall be a per annum rate equal to
the greater of (x) the excess,
-4-
if any, of (i) 2 times the Net WAC over (ii) 2 times the REMIC Swap Rate
for such Distribution Date and (y) 0.00%.
(4) The Class SWR Interest shall have no principal amount and shall bear no
interest.
(5) The Class SW-Coupon Strip Interest shall not be entitled to principal and
shall be entitled to interest on each Distribution Date in an amount equal
to any amount required to be deposited into the Final Maturity Reserve
Account for such Distribution Date.
THE LOWER TIER REMIC
The following table sets forth the designations, initial principal balances,
interest rates and Classes of Corresponding Certificates for each interest in
the Lower Tier REMIC:
Class(es) of
Corresponding
Class Initial Principal Balance Interest Rate Certificates
----- ------------------------- ------------- -------------
LTA-1 (1) (3) A-1, R
LTA-2 (1) (3) A-2
LTA-3 (1) (3) A-3
LTM-1 (1) (3) M-1
LTM-2 (1) (3) M-2
LTM-3 (1) (3) M-3
LTM-4 (1) (3) M-4
LTM-5 (1) (3) M-5
LTM-6 (1) (3) M-6
LTB-1 (1) (3) B-1
LTB-2 (1) (3) B-2
LTB-3 (1) (3) B-3
LTX (2) (3) N/A
LT-IO (4) (4) N/A
LTR (5) (5) N/A
LT-Coupon Strip (6) (6) N/A
(1) The initial principal balance of each of these Lower Tier REMIC Regular
Interests shall equal 1/2 of the initial Certificate Principal Balance of
its Corresponding Certificates.
(2) The initial principal balance of the Class LTX Interest shall equal the
excess of (i) the aggregate Cut-off Date Principal Balance of the Mortgage
Loans over (ii) the initial principal balance of the Lower Tier REMIC
Marker Interests.
(3) For each Distribution Date, the interest rate for each of the Lower Tier
REMIC Regular Interests (other than the Class LT-IO Interest and the Class
LT-Coupon Strip Interest) shall be a per annum rate (but not less than
zero) equal to the product of (i) the weighted average of the interest
rates on the SWAP REMIC Regular Interests (other than the Class SW-Coupon
Strip Interest) for such Distribution Date and (ii) a fraction the
numerator of which is 30 and the denominator of which is the actual number
of days in the Accrual Period for the LIBOR Certificates, provided however,
that for any Distribution Date on which the Class LT-IO Interest is
entitled to a
-5-
portion of interest accruals on a SWAP REMIC Regular Interest ending with a
designation "A" as described in footnote 4 below, such weighted average
shall be computed by first subjecting the rate on such SWAP REMIC Regular
Interest to a cap equal to Swap LIBOR for such Distribution Date.
(4) The Class LT-IO Interest is an interest-only class that does not have a
principal balance. For only those Distribution Dates listed in the first
column of the table below, the Class LT-IO Interest shall be entitled to
interest accrued on the SWAP REMIC Regular Interest listed in the second
column below at a per annum rate equal to the excess, if any, of (i) the
interest rate for such SWAP REMIC Regular Interest for such Distribution
Date over (ii) Swap LIBOR for such Distribution Date.
Distribution Date SWAP REMIC Regular Interest
----------------- ---------------------------
12 Class SW-1A
12-13 Class SW-2A
12-14 Class SW-3A
12-15 Class SW-4A
12-16 Class SW-5A
12-17 Class SW-6A
12-18 Class SW-7A
12-19 Class SW-8A
12-20 Class SW-9A
12-21 Class SW-10A
12-22 Class SW-11A
12-23 Class SW-12A
12-24 Class SW-13A
12-25 Class SW-14A
12-26 Class SW-15A
12-27 Class SW-16A
12-28 Class SW-17A
12-29 Class SW-18A
12-30 Class SW-19A
12-31 Class SW-20A
12-32 Class SW-21A
12-33 Class SW-22A
12-34 Class SW-23A
12-35 Class SW-24A
12-36 Class SW-25A
12-37 Class SW-26A
12-38 Class SW-27A
12-39 Class SW-28A
12-40 Class SW-29A
12-41 Class SW-30A
12-42 Class SW-31A
12-43 Class SW-32A
12-44 Class SW-33A
12-45 Class SW-34A
12-46 Class SW-35A
12-47 Class SW-36A
12-48 Class SW-37A
12-49 Class SW-38A
12-50 Class SW-39A
12-51 Class SW-40A
12-52 Class SW-41A
12-53 Class SW-42A
12-54 Class SW-43A
12-55 Class SW-44A
12-56 Class SW-45A
-6-
12-57 Class SW-46A
12-58 Class SW-47A
12-59 Class SW-48A
12-60 Class SW-49A
12-61 Class SW-50A
12-62 Class SW-51A
12-63 Class SW-52A
12-64 Class SW-53A
12-65 Class SW-54A
12-66 Class SW-55A
12-67 Class SW-56A
12-68 Class SW-57A
(5) The Class LTR Interest shall have no principal amount and shall bear no
interest.
(6) The Class LT-Coupon Strip Interest shall not be entitled to principal and
shall be entitled to interest on each Distribution Date in an amount equal
any amount required to be deposited into the Final Maturity Reserve Account
for such Distribution Date.
UPPER TIER REMIC
The following table sets forth the designation, the initial principal balances,
the interest rates and Classes of Related Certificates for each of the interests
in the Upper Tier REMIC.
Initial Principal Class of Related
Class Balance Rate Certificates
----- ----------------- ---- ----------------
UTA-1 (1) (2) A-1
UTA-2 (1) (2) A-2
UTA-3 (1) (2) A-3
UTM-1 (1) (2) M-1
UTM-2 (1) (2) M-2
UTM-3 (1) (2) M-3
UTM-4 (1) (2) M-4
UTM-5 (1) (2) M-5
UTM-6 (1) (2) M-6
UTB-1 (1) (2) B-1
UTB-2 (1) (2) B-2
UTB-3 (1) (2) B-3
Uncertificated Class C Interest (3) (3) N/A
UT-IO (4) (4) N/A
Residual Interest (1) (2) R
UT-Coupon Strip (5) (5) N/A
(1) The initial principal balance of each of these REMIC Regular Interests and
the Residual Interest shall equal the initial principal balance of its
Class of Related Certificates.
(2) The interest rates on each of these REMIC Regular Interests and the
Residual Interest shall be an annual rate equal to the Pass-Through Rate
for the Class of Related Certificates, provided that in lieu of the
applicable Available Funds Cap set forth in the definition of an applicable
Pass-Through Rate, the applicable Upper Tier REMIC Net WAC Cap shall be
used.
-7-
(3) The Uncertificated Class C Interest shall have an initial principal balance
equal to the initial Overcollateralization Amount. The Uncertificated Class
C Interest shall accrue interest on a notional balance set forth in the
definition of Class C Current Interest at a rate equal to the Class C
Distributable Interest Rate. The Uncertificated Class C Interest shall be
represented by the Class C Certificates.
(4) The Class UT-IO Interest shall have no principal amount and will not have
an interest rate, but will be entitled to 100% of the interest accrued with
respect to the Class LT-IO Interest. The Class UT-IO Interest shall be
represented by the Class C Certificates.
(5) The Class UT-Coupon Strip Interest shall not be entitled to principal and
shall be entitled to interest on each Distribution Date in an amount equal
any amount required to be deposited into the Final Maturity Reserve Account
for such Distribution Date. The Class UT-Coupon Strip Interest shall be
represented by the Class C Certificates.
THE CERTIFICATES
The following table sets forth (or describes) the Class designation,
initial Certificate Principal Balance or initial notional amount, integral
dollar multiples in excess thereof (except that one Certificate of each Class
may be issued in a different amount which must be in excess of the applicable
minimum dollar denomination) and minimum denomination for each Class of
Certificates comprising interests in the Trust Fund created hereunder.
Initial Certificate Principal Integral Multiples Minimum
Class Balance or Initial Notional in Excess of Denominations or
Designation Amount Minimum Percentage Interest
----------- ----------------------------- ------------------ -------------------
Class A-1 $216,169,000 $1.00 $25,000.00
Class A-2 $ 90,069,000 $1.00 $25,000.00
Class A-3 $ 54,041,000 $1.00 $25,000.00
Class R $ 100 N/A $ 100
Class M-1 $ 7,087,000 $1.00 $25,000.00
Class M-2 $ 5,907,000 $1.00 $25,000.00
Class M-3 $ 3,150,000 $1.00 $25,000.00
Class M-4 $ 2,362,000 $1.00 $25,000.00
Class M-5 $ 1,575,000 $1.00 $25,000.00
Class M-6 $ 2,166,000 $1.00 $25,000.00
Class B-1 $ 1,968,000 $1.00 $25,000.00
Class B-2 $ 1,772,000 $1.00 $25,000.00
Class B-3 $ 1,968,000 $1.00 $25,000.00
Class P (1) 1% 10%
Class C (2) 1% 10%
----------
(1) The Class P Certificates shall not have minimum dollar denominations or
Certificate Principal Balance and shall be issued in a minimum percentage
interest of 10% and an aggregate percentage interest of 100%. The Class P
Certificates will be entitled to receive Prepayment Charges on the
Prepayment Charge Mortgage Loans.
-8-
(2) The Class C Certificates shall not have minimum dollar denominations as the
Certificate Principal Balance thereof shall vary over time as described
herein and shall be issued in a minimum percentage interest of 10% and an
aggregate percentage interest of 100%.
As of the Cut-off Date, the Mortgage Loans had an aggregate Stated
Principal Balance of $393,747,909.16.
In consideration of the mutual agreements herein contained, the Depositor,
the Trustee, Wilshire, the Securities Administrator and the Master Servicer
hereby agree as follows:
-9-
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
otherwise expressly provided or unless the context otherwise requires, shall
have the meanings specified in this Article.
40-Year Mortgage Loan: Any Mortgage Loan with original terms to maturity
equal to 480 months, excluding any Mortgage Loan with original amortization
terms of 480 months and originals terms to maturity of 360 months.
Accepted Master Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (i) those customary mortgage master servicing practices of
prudent mortgage servicing institutions that master service mortgage loans of
the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to the Trustee
or the Master Servicer (except in its capacity as successor to a Servicer), or
(ii) as provided herein, but in no event below the standard set forth in clause
(i).
Accepted Servicing Practices: Wilshire's normal servicing practices, which
will conform to the mortgage servicing practices of prudent mortgage lending
institutions that service for their own account mortgage loans of the same type
as the Mortgage Loans in the jurisdictions in which the related Mortgaged
Properties are located.
Account: The Master Servicer Collection Account, Distribution Account and
any Collection Account as the context may require.
Accountant's Attestation: A report from a nationally or regionally
recognized firm of independent registered public accountants which is a member
of the American Institute of Certified Public Accountants to the effect that (i)
it has obtained a representation regarding certain matters from the management
of Wilshire, which includes an assertion as to whether Wilshire 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
Wilshire's compliance with the relevant Servicing Criteria was fairly stated in
all material respects, or it cannot express an overall opinion regarding
Wilshire's assessment of compliance with the Relevant Servicing Criteria.
Accrual Period: With respect to the Certificates, their Corresponding REMIC
Regular Interests and the Lower Tier REMIC Interests and a Distribution Date,
the period from and including the preceding Distribution Date (or from the
Closing Date in the case of the first Distribution Date) to and including the
day prior to such Distribution Date and with respect to the SWAP REMIC Regular
Interests and any Distribution Date, the calendar month immediately preceding
the month in which such Distribution Date occurs. All calculations of interest
with respect to the Certificates, their Corresponding REMIC Regular Interests
and the Lower Tier REMIC Interests will be made on the basis of the actual
number of days elapsed in the related Accrual Period and a 360 day year and all
calculations of interest on the SWAP REMIC Regular Interests will be made on the
basis of a 360-day year consisting of twelve 30-day months.
-10-
Additional Disclosure Notification: As defined in Section 3.18(b).
Additional Form 10-D Disclosure: As defined in Section 3.18(e).
Additional Form 10-K Disclosure: As defined in Section 3.18(h).
Adjustment Date: With respect to a Mortgage Loan, generally the first day
of the month or months specified in the related mortgage note.
Advance: The aggregate of the advances required to be made by a Servicer
with respect to any Distribution Date pursuant to Section 13.22 or the Master
Servicer pursuant to Section 6.04, the amount of any such advances being equal
to the sum of the aggregate amount of all payments of principal and interest
(or, with respect to the interest-only Mortgage Loans, payments of scheduled
interest) (net of the Servicing Fee) on the related Mortgage Loans that were due
during the applicable Due Period and not received as of the close of business on
the related Determination Date (based on the Minimum Payment for such Mortgage
Loan), except as provided in Section 13.22 or Section 6.04 hereof, less the
aggregate amount of any such Delinquent payments that a Servicer has determined
would constitute a Non-Recoverable Advance were an advance to be made with
respect thereto; provided, however, that with respect to (i) any Mortgage Loan
that is 150 days delinquent or more (whether or not the Mortgage Loan has been
converted to an REO Property), (ii) shortfalls in principal and interest due to
bankruptcy proceedings, the application of the Relief Act or similar laws or
permitted modifications and (iii) the principal portion of any amount paid on a
Balloon Loan, there will be no obligation to make advances and, provided
further, however, that with respect to any Mortgage Loan that has been converted
to an REO Property which is less than 150 days delinquent, the obligation to
make Advances shall only be to payments of interest (subject to the exceptions
described above and net of the Servicing Fees), to be calculated after taking
into account rental income.
Advance Financing Person: A Person to whom Wilshire's rights under this
Agreement to be reimbursed for any Advances or Servicing Advances have been
assigned pursuant to Section 13.08(ii).
Adverse REMIC Event: As defined in Section 9.12(g).
Affiliate: As to any Person, any other Person controlling, controlled by or
under common control with such Person. "Control" means the power to direct the
management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. "Controlled" and
"Controlling" have meanings correlative to the foregoing. The Master Servicer
may conclusively presume that a Person is not an Affiliate of another Person
unless a Responsible Officer of the Master Servicer has actual knowledge to the
contrary.
Agreement: This Pooling and Servicing Agreement, dated as of June 1, 2007,
by and among the Depositor, the Master Servicer, the Securities Administrator,
Wilshire and the Trustee, including the exhibits hereto, and all amendments
hereof and supplements hereto.
Annual Statement of Compliance: The statement of compliance as required by
Section 16.04 hereto.
-11-
Applicable Credit Rating: For any long-term deposit or security, a credit
rating of "AAA" in the case of S&P or "Aaa" in the case of Xxxxx'x. For any
short-term deposit or security, a rating of "A-l+" in the case of S&P or "P-1"
in the case of Xxxxx'x.
Applicable Servicing Agreement: With respect to (i) Residential Funding
Company, LLC, the Standard Terms and Provisions of Sale and Servicing Agreement,
dated as of February 1, 2007, between Residential Funding Company, LLC and
Xxxxxxx Xxxxx Mortgage Lending, Inc. and (ii) Wilshire, this Agreement.
Applied Realized Loss Amount: With respect to any class of Certificates and
as to any Distribution Date, the sum of the Realized Losses with respect to the
Mortgage Loans which have been applied in reduction of the Certificate Principal
Balance of such class.
Appraised Value: For any Mortgaged Property related to a Mortgage Loan, the
amount set forth as the appraised value of such Mortgaged Property in an
appraisal made for the mortgage originator in connection with its origination of
the related Mortgage Loan.
Assessment of Compliance: An officer's assessment of its compliance with
the Relevant Servicing Criteria during the preceding calendar year as required
by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB.
Assignment: An assignment of the Mortgage, notice of transfer or equivalent
instrument, in recordable form, sufficient under the laws of the jurisdiction
wherein the related Mortgaged Property is located to reflect of record the sale
of the Mortgage Loan to the Trustee for the benefit of Certificateholders, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county, if permitted by law and accompanied by an
Opinion of Counsel to that effect.
Auction: The one-time auction conducted by the Securities Administrator, as
described in Section 10.01(b) hereof.
Available Funds Cap: With respect to a Distribution Date, the per annum
rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest on the Mortgage Loans based on the Net Mortgage Rates in
effect on the related Due Date, less any Net Swap Payments or Swap Termination
Payments (other than Defaulted Swap Termination Payments) owed to the Swap
Counterparty and amounts deposited into the Final Maturity Reserve Account for
such Distribution Date and (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the first day of the related Accrual Period (or, in the
case of the first Distribution Date, as of the Cut-off Date) and (iii) a
fraction, the numerator of which is 30, and the denominator of which is the
actual number of days in the related Accrual Period.
Back-Up Certification: As defined in Section 3.18(k).
Balloon Loan: A Mortgage Loan having an original term to stated maturity of
approximately 15 or 30 years which provides for level monthly payments of
principal and interest based on a 30-, 40- or 50-year amortization schedule,
with a balloon payment of the remaining outstanding principal balance due on
such Mortgage Loan at its stated maturity.
-12-
Bankruptcy Code: The United States Bankruptcy Code, as amended as codified
in 11 U.S.C. Sections 101-1330.
Book-Entry Certificates: Any of the Certificates that shall be registered
in the name of the Depository or its nominee, the ownership of which is
reflected on the books of the Depository or on the books of a Person maintaining
an account with the Depository (directly, as a Depository Participant, or
indirectly, as an indirect participant in accordance with the rules of the
Depository and as described in Section 5.02 hereof). On the Closing Date, the
Certificates (other than the Class R Certificate) shall be Book-Entry
Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a day on
which banking institutions in the jurisdiction in which the Trustee, the Master
Servicer, the Servicers or the Securities Administrator are authorized or
obligated by law or executive order to be closed, or (iii) with respect to
Wilshire only, any day on which the New York Stock Exchange is closed.
Cap Contract Counterparty: Xxxxxx Xxxxxxx Capital Services Inc., with whom
the Securities Administrator, on behalf of the Issuing Entity, entered into the
Corridor Contract.
Certificate: Any mortgage pass-through certificate issued pursuant to this
Agreement evidencing a beneficial ownership interest in that portion of the
Trust Fund related to the Mortgage Loans, signed and countersigned by the
Securities Administrator.
Certificate Owner: With respect to each Book-Entry Certificate, any
beneficial owner thereof.
Certificate Register: The register maintained pursuant to Section 5.02
hereof.
Certificateholder or Holder: The Person in whose name a Regular Certificate
is registered in the Certificate Register, except that a Disqualified
Organization or non-U.S. Person shall not be a Holder of the Class R Certificate
for any purpose hereof.
Certification Parties: As defined in Section 3.18(k).
Certifying Person: As defined in Section 3.18(k).
Certificate Principal Balance: As to any Certificate and as of any
Distribution Date, the Initial Certificate Principal Balance of such Certificate
(a) less the sum of (1) all amounts distributed with respect to such Certificate
in reduction of the Certificate Principal Balance thereof on previous
Distribution Dates pursuant to Section 6.01, and (2) any Realized Loss Amounts
allocated to such Certificate on previous Distribution Dates pursuant to Section
6.01(j), and (b) plus any Deferred Interest allocated to such Certificate on
previous Distribution Dates. On each Distribution Date, after all distributions
of principal on such Distribution Date, a portion of the Class C Interest Carry
Forward Amount in an amount equal to the excess of the Overcollateralization
Amount on such Distribution Date over the Overcollateralization Amount as of the
preceding Distribution Date (or, in the case of the first Distribution Date, the
initial Overcollateralization Amount (based on the Stated Principal Balance of
the Mortgage Loans as of the Cut-Off Date)) will be added to the aggregate
Certificate Principal Balance of the Class C Certificates (on a pro rata basis).
Notwithstanding the immediately preceding sentence,
-13-
however, to the extent any excess referred to in the immediately preceding
sentence is attributable to distributions of proceeds of the Swap Agreement,
such sentence shall be applied by substituting "Class C Unpaid Realized Loss
Amount" for "Class C Interest Carry Forward Amount". Notwithstanding the
foregoing on any Distribution Date relating to a Due Period in which a
Subsequent Recovery has been received by the applicable Servicer, the
Certificate Principal Balance of any Class of Certificates then outstanding for
which any Realized Loss Amount has been allocated will be increased, in order of
seniority, by an amount equal to the lesser of (i) the Unpaid Realized Loss
Amount for such Class of Certificates and (ii) the total of any Subsequent
Recovery distributed on such date to the Certificateholders (reduced by the
amount of the increase in the Certificate Principal Balance of any more senior
Class of Certificates pursuant to this sentence on such Distribution Date).
Class: Collectively, Certificates which have the same priority of payment
and bear the same class designation and the form of which is identical except
for variation in the Percentage Interest evidenced thereby.
Class A-1 Certificate: Any Certificate designated as a "Class A-1
Certificate" on the face thereof substantially in the form annexed hereto as
Exhibit A-1, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein.
Class A-1 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class A-1 Certificates.
Class A-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-1 Pass-Through Rate on
the Class A-1 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or a Class A-1 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-1 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class A-1
Certificates. For purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class A-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-1 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-1 Pass-Through Rate for the related Accrual Period. The Class A-1
Interest Carry Forward Amount shall not include any amounts attributable to an
allocation of Deferred Interest.
Class A-1 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.1900% per annum, and (ii) after the Initial
Optional Termination Date, 0.3800% per annum.
Class A-1 Pass-Through Rate: For the first Distribution Date, 5.510% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-1 Margin,
-14-
(2) the Available Funds Cap for such Distribution Date and (3) the Maximum Rate
Cap for such Distribution Date.
Class A-2 Certificate: Any Certificate designated as a "Class A-2
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-2 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2 Pass-Through Rate on
the Class A-2 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or a Class A-2 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-2 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class A-2
Certificates. For purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class A-2 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-2 Pass-Through Rate for the related Accrual Period. The Class A-2
Interest Carry Forward Amount shall not include any amounts attributable to an
allocation of Deferred Interest.
Class A-2 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.2400% per annum, and (ii) after the Initial
Optional Termination Date, 0.4800% per annum.
Class A-2 Pass-Through Rate: For the first Distribution Date, 5.560% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2 Margin, (2) the Available Funds Cap for such Distribution
Date and (3) the Maximum Rate Cap for such Distribution Date.
Class A-3 Certificate: Any Certificate designated as a "Class A-3
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-3 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-3 Pass-Through Rate on
the Class A-3 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or a Class A-3 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class A-3 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class A-3
Certificates. For purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
-00-
Xxxxx X-0 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-3 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-3 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class A-3 Pass-Through Rate for the related Accrual Period. The Class A-3
Interest Carry Forward Amount shall not include any amounts attributable to an
allocation of Deferred Interest.
Class A-3 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.2900% per annum, and (ii) after the Initial
Optional Termination Date, 0.5800% per annum.
Class A-3 Pass-Through Rate: For the first Distribution Date, 5.610% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-3 Margin, (2) the Available Funds Cap for such Distribution
Date and (3) the Maximum Rate Cap for such Distribution Date.
Class B Certificate: Any one of the Class B-1, Class B-2 or Class B-3
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-2, executed by the Securities Administrator and
authenticated and delivered by the Securities Administrator, representing the
right to distributions as set forth herein and therein.
Class B Certificateholder: Any Holder of a Class B Certificate.
Class B-1 Certificate: Any Certificate designated as "Class B-1 Certificate
"on the face thereof in the form of Exhibit A-2 hereto, representing the right
to distributions as set forth herein.
Class B-1 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class B-1 Certificates.
Class B-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-1 Pass-Through Rate on
the Class B-1 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or Class B-1 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class B-1 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class B-1
Certificates. For purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class B-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-1 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class B-1 Pass-Through Rate for the related Accrual Period. The Class B-1
Interest Carry Forward Amount shall not include any amounts attributable to an
allocation of Deferred Interest.
-16-
Class B-1 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.5000% per annum, and (ii) after the Initial
Optional Termination Date, 2.2500% per annum.
Class B-1 Pass-Through Rate: For the first Distribution Date, 6.820% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-1 Margin, (2) the Available Funds Cap for such Distribution
Date and (3) the Maximum Rate Cap for such Distribution Date.
Class B-1 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the aggregate Certificate Principal Balance of the Senior Certificates and Class
M Certificates has been reduced to zero and a Stepdown Trigger Event exists, or,
as long as a Stepdown Trigger Event does not exist, the excess of (1) the sum of
(A) the Certificate Principal Balance of the Senior Certificates and the
Certificate Principal Balance of the Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5 and Class M-6 Certificates (after taking into account distributions of
the related Principal Distribution Amount for such Distribution Date and after
the allocation of Deferred Interest, if any, for each Distribution Date) and (B)
the Certificate Principal Balance of the Class B-1 Certificates immediately
prior to such Distribution Date over (2) the lesser of (A) (i) for any
Distribution Date on or prior to June 2013, 94.125% of the aggregate Stated
Principal Balance of the Mortgage Loans as of such Distribution Date and (ii)
for any Distribution Date after June 2013, 95.300% of the aggregate Stated
Principal Balance of the Mortgage Loans as of such Distribution Date and (B) the
excess of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date over the Minimum Required Overcollateralization Amount.
Notwithstanding the above, (1) on any Distribution Date prior to the Stepdown
Date on which the aggregate Certificate Principal Balance of the Senior
Certificates and Class M Certificates has been reduced to zero, the Class B-1
Principal Distribution Amount will equal the lesser of (A) the outstanding
Certificate Principal Balance of the Class B-1 Certificates and (B) 100% of the
Principal Distribution Amount remaining after any distributions on the Senior
Certificates and Class M Certificates and (2) in no event will the Class B-1
Principal Distribution Amount with respect to any Distribution Date exceed the
Certificate Principal Balance of the Class B-1 Certificates.
Class B-2 Certificate: Any Certificate designated as "Class B-2 Certificate
"on the face thereof in the form of Exhibit A-2 hereto, representing the right
to distributions as set forth herein.
Class B-2 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class B-2 Certificates.
Class B-2 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-2 Pass-Through Rate on
the Class B-2 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or Class B-2 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class B-2 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class B-2
Certificates. For purposes of calculating interest,
-17-
principal distributions on a Distribution Date will be deemed to have been made
on the first day of the Accrual Period in which such Distribution Date occurs.
Class B-2 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-2 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-2 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class B-2 Pass-Through Rate for the related Accrual Period. The Class B-2
Interest Carry Forward Amount shall not include any amounts attributable to an
allocation of Deferred Interest.
Class B-2 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.5000% per annum, and (ii) after the Initial
Optional Termination Date, 2.2500% per annum.
Class B-2 Pass-Through Rate: For the first Distribution Date, 6.820% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-2 Margin, (2) the Available Funds Cap for such Distribution
Date and (3) the Maximum Rate Cap for such Distribution Date.
Class B-2 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the aggregate Certificate Principal Balance of the Class A, Class M and Class
B-1 Certificates has been reduced to zero and a Stepdown Trigger Event exists,
or, as long as a Stepdown Trigger Event does not exist, the excess of (1) the
sum of (A) the Certificate Principal Balance of the Senior Certificates and the
Certificate Principal Balance of the Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6 and Class B-1 Certificates (after taking into account
distributions of the related Principal Distribution Amount for such Distribution
Date and after the allocation of Deferred Interest, if any, for each
Distribution Date) and (B) the Certificate Principal Balance of the Class B-2
Certificates immediately prior to such Distribution Date over (2) the lesser of
(A) (i) for any Distribution Date on or prior to June 2013, 95.250% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (ii) for any Distribution Date after June 2013, 96.200% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date over the Minimum Required
Overcollateralization Amount. Notwithstanding the above, (1) on any Distribution
Date prior to the Stepdown Date on which the aggregate Certificate Principal
Balance of the Class A, Class M and Class B-1 Certificates has been reduced to
zero, the Class B-2 Principal Distribution Amount will equal the lesser of (A)
the outstanding Certificate Principal Balance of the Class B-2 Certificates and
(B) 100% of the Principal Distribution Amount remaining after any distributions
on the Class A, Class M and Class B-1 Certificates and (2) in no event will the
Class B-2 Principal Distribution Amount with respect to any Distribution Date
exceed the Certificate Principal Balance of the Class B-2 Certificates.
Class B-3 Certificate: Any Certificate designated as "Class B-3 Certificate
"on the face thereof in the form of Exhibit A-2 hereto, representing the right
to distributions as set forth herein.
-18-
Class B-3 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class B-3 Certificates.
Class B-3 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-3 Pass-Through Rate on
the Class B-3 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or Class B-3 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class B-3 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class B-3
Certificates. For purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class B-3 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-3 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-3 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class B-3 Pass-Through Rate for the related Accrual Period. The Class B-3
Interest Carry Forward Amount shall not include any amounts attributable to an
allocation of Deferred Interest.
Class B-3 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.5000% per annum, and (ii) after the Initial
Optional Termination Date, 2.2500% per annum.
Class B-3 Pass-Through Rate: For the first Distribution Date, 6.820% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-3 Margin, (2) the Available Funds Cap for such Distribution
Date and (3) the Maximum Rate Cap for such Distribution Date.
Class B-3 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the aggregate Certificate Principal Balance of the Class A, Class M, Class B-1
and Class B-2 Certificates has been reduced to zero and a Stepdown Trigger Event
exists, or, as long as a Stepdown Trigger Event does not exist, the excess of
(1) the sum of (A) the Certificate Principal Balance of the Senior Certificates
and the Certificate Principal Balance of the Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class B-1 and Class B-2 Certificates (after
taking into account distributions of the related Principal Distribution Amount
for such Distribution Date and after the allocation of Deferred Interest, if
any, for each Distribution Date) and (B) the Certificate Principal Balance of
the Class B-3 Certificates immediately prior to such Distribution Date over (2)
the lesser of (A) (i) for any Distribution Date on or prior to June 2013,
96.500% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (ii) for any Distribution Date after June 2013,
97.200% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (B) the excess of the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution Date over the Minimum
Required Overcollateralization Amount. Notwithstanding the above, (1) on any
Distribution Date prior to the Stepdown Date on which the aggregate Certificate
Principal Balance of the Class A, Class M, Class B-1 and Class B-2 Certificates
has been reduced to zero, the Class B-3
-19-
Principal Distribution Amount will equal the lesser of (A) the outstanding
Certificate Principal Balance of the Class B-3 Certificates and (B) 100% of the
Principal Distribution Amount remaining after any distributions on the Class A,
Class M, Class B-1 and Class B-2 Certificates and (2) in no event will the Class
B-3 Principal Distribution Amount with respect to any Distribution Date exceed
the Certificate Principal Balance of the Class B-3 Certificates.
Class C Applied Realized Loss Amount: As of any Distribution Date, the sum
of all Realized Loss Amounts with respect to the Mortgage Loans which have been
applied to the reduction of the Certificate Principal Balance of the Class C
Certificates.
Class C Certificate: Any Certificate designated as a "Class C Certificate"
on the face thereof, in the form of Exhibit A-5 hereto, representing the right
to distributions as set forth herein.
Class C Certificate Principal Balance: As of any date of determination, the
aggregate Certificate Principal Balance of the Class C Certificates.
Class C Current Interest: As of any Distribution Date, the interest accrued
during the related Accrual Period at the Class C Distributable Interest Rate on
a notional amount equal to the aggregate principal balance of the Lower Tier
REMIC Regular Interests immediately prior to such Distribution Date, plus the
interest portion of any previous distributions on such Class that is recovered
as a voidable preference by a trustee in bankruptcy, less any Prepayment
Interest Shortfalls allocated on such Distribution Date to the Class C
Certificates and less any Deferred Interest allocated on such Distribution Date
to the Class C Certificates.
Class C Distributable Interest Rate: The excess, if any, of (a) the
weighted average of the interest rates on the Lower Tier REMIC Regular Interests
(other than the Class LT-IO Interest and the Class LT-Coupon Strip Interest)
over (b) two times the weighted average of the interest rates on the Lower Tier
REMIC Regular Interests (other than the Class LT-IO Interest and the Class
LT-Coupon Strip Interest) (treating for purposes of this clause (b) the interest
rate on each of the Lower Tier REMIC Marker Interests as being subject to a cap
equal to the interest rate of the Corresponding REMIC Regular Interest of the
Corresponding Certificates (as adjusted, if necessary, to reflect the length of
the Accrual Period for the LIBOR Certificates) and treating the Class LTX
Interest as being capped at zero). The averages described in the preceding
sentence shall be weighted on the basis of the respective principal balances of
the Lower Tier REMIC Regular Interests immediately prior to any date of
determination.
Class C Interest Carry Forward Amount: As of any Distribution Date, the
excess of (A) the Class C Current Interest with respect to prior Distribution
Dates over (B) the amount actually distributed to the Class C Certificates with
respect to interest on such prior Distribution Dates or added to the aggregate
Certificate Principal Balance of the Class C Certificates (other than amounts so
added attributable to Subsequent Recoveries or proceeds of the Swap Agreement).
The Class C Interest Carry Forward Amount shall not include any amounts
attributable to an allocation of Deferred Interest.
Class C Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class C Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class C Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all
-20-
increases in the Certificate Principal Balance of such Class C Certificates (A)
pursuant to the last sentence of the definition of "Certificate Principal
Balance" or (B) attributable to distributions of proceeds of the Swap Agreement.
Class LT-Coupon Strip Interest: An uncertificated regular interest in the
Lower Tier REMIC with the characteristics set forth in the description of the
Lower Tier REMIC in the Preliminary Statement and that is entitled to
distributions in amounts equal to any amounts deposited into the Final Maturity
Reserve Account.
Class LT-IO Interest: An uncertificated regular interest in the Lower Tier
REMIC with the characteristics set forth in the description of the Lower Tier
REMIC in the Preliminary Statement.
Class LTA-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificates and an interest rate equal to the Net
Rate.
Class LTA-2 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-3 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-2 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-3 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTX Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to the excess of (i) the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date over (ii)
the aggregate initial principal balance of the Lower Tier REMIC Marker
Interests, and with an interest rate equal to the Net Rate.
Class LTM-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-2 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
-21-
Class LTM-3 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-4 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-5 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-6 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/2 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTR Interest: The sole class of "residual interest" in the Lower Tier
REMIC.
Class M Certificate: Any one of the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5 and Class M-6 Certificates as designated on the face thereof
substantially in the form annexed hereto as Exhibit A-1, executed by the
Securities Administrator and authenticated and delivered by the Securities
Administrator, representing the right to distributions as set forth herein and
therein.
Class M Certificateholder: Any Holder of a Class M Certificate.
Class M-1 Certificate: Any Certificate designated as a "Class M-1
Certificate" on the face thereof, in the form of Exhibit A hereto, representing
the right to distributions as set forth herein.
Class M-1 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-1 Certificates.
Class M-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-1 Pass-Through Rate on
the Class M-1 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or Class M-1 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-1 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class M-1
Certificates. For purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class M-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-1 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-1 Pass-Through Rate for the related Accrual Period. The Class M-1
Interest
-22-
Carry Forward Amount shall not include any amounts attributable to an allocation
of Deferred Interest.
Class M-1 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.5000% per annum, and (ii) after the Initial
Optional Termination Date, 0.7500% per annum.
Class M-1 Pass-Through Rate: For the first Distribution Date, 5.820% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-1 Margin, (2) the Available Funds Cap for such Distribution
Date and (3) the Maximum Rate Cap for such Distribution Date.
Class M-1 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the aggregate Certificate Principal Balance of the Senior Certificates has been
reduced to zero and a Stepdown Trigger Event exists, or, as long as a Stepdown
Trigger Event does not exist, the excess of (1) the sum of (A) the Certificate
Principal Balance of the Senior Certificates (after taking into account
distributions of the Senior Principal Distribution Amount to the Senior
Certificates for such Distribution Date and after the allocation of Deferred
Interest, if any, for each Distribution Date) and (B) the Certificate Principal
Balance of the Class M-1 Certificates immediately prior to such Distribution
Date over (2) the lesser of (A) (i) for any Distribution Date on or prior to
June 2013, 83.250% of the aggregate Stated Principal Balance of the Mortgage
Loans as of such Distribution Date and (ii) for any Distribution Date after June
2013, 86.600% of the aggregate Stated Principal Balance of the Mortgage Loans as
of such Distribution Date and (B) the excess of the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution Date over the Minimum
Required Overcollateralization Amount. Notwithstanding the above, (1) on any
Distribution Date prior to the Stepdown Date on which the aggregate Certificate
Principal Balance of the Senior Certificates has been reduced to zero, the Class
M-1 Principal Distribution Amount will equal the lesser of (A) the outstanding
Certificate Principal Balance of the Class M-1 Certificates and (B) 100% of the
Principal Distribution Amount remaining after any distributions on the Senior
Certificates and (2) in no event will the Class M-1 Principal Distribution
Amount with respect to any Distribution Date exceed the Certificate Principal
Balance of the Class M-1 Certificates.
Class M-2 Certificate: Any Certificate designated as a "Class M-2
Certificate" on the face thereof, in the form of Exhibit A hereto, representing
the right to distributions as set forth herein.
Class M-2 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-2 Certificates.
Class M-2 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-2 Pass-Through Rate on
the Class M-2 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or Class M-2 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-2 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class M-2
Certificates. For purposes of
-23-
calculating interest, principal distributions on a Distribution Date will be
deemed to have been made on the first day of the Accrual Period in which such
Distribution Date occurs.
Class M-2 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-2 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-2 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-2 Pass-Through Rate for the related Accrual Period. The Class M-2
Interest Carry Forward Amount shall not include any amounts attributable to an
allocation of Deferred Interest.
Class M-2 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.5500% per annum, and (ii) after the Initial
Optional Termination Date, 0.8250% per annum.
Class M-2 Pass-Through Rate: For the first Distribution Date, 5.870% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-2 Margin, (2) the Available Funds Cap for such Distribution
Date and (3) the Maximum Rate Cap for such Distribution Date.
Class M-2 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Certificate Principal Balance of each class of Senior Certificates and Class
M-1 Certificates has been reduced to zero and a Stepdown Trigger Event exists,
or, as long as a Stepdown Trigger Event does not exist, the excess of (1) the
sum of (A) the Certificate Principal Balance of the Senior Certificates and the
Certificate Principal Balance of the Class M-1 Certificates (after taking into
account distributions of the related Principal Distribution Amount for such
Distribution Date and after the allocation of Deferred Interest, if any, for
each Distribution Date) and (B) the Certificate Principal Balance of the Class
M-2 Certificates immediately prior to such Distribution Date over (2) the lesser
of (A) (i) for any Distribution Date on or prior to June 2013, 87.000% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (ii) for any Distribution Date after June 2013, 89.600% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date over the Minimum Required
Overcollateralization Amount. Notwithstanding the above, (1) on any Distribution
Date prior to the Stepdown Date on which the aggregate Certificate Principal
Balance of the Senior Certificates and the Class M-1 Certificates has been
reduced to zero, the Class M-2 Principal Distribution Amount will equal the
lesser of (A) the outstanding Certificate Principal Balance of the Class M-2
Certificates and (B) 100% of the Principal Distribution Amount remaining after
any distributions on the Senior Certificates and Class M-1 Certificates and (2)
in no event will the Class M-2 Principal Distribution Amount with respect to any
Distribution Date exceed the Certificate Principal Balance of the Class M-2
Certificates
Class M-3 Certificate: Any Certificate designated as a "Class M-3
Certificate" on the face thereof, in the form of Exhibit A hereto, representing
the right to distributions as set forth herein.
-24-
Class M-3 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-3 Certificates.
Class M-3 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-3 Pass-Through Rate on
the Class M-3 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or Class M-3 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-3 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class M-3
Certificates. For purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class M-3 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-3 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-3 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-3 Pass-Through Rate for the related Accrual Period. The Class M-3
Interest Carry Forward Amount shall not include any amounts attributable to an
allocation of Deferred Interest.
Class M-3 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 0.7500% per annum, and (ii) after the Initial
Optional Termination Date, 1.1250% per annum.
Class M-3 Pass-Through Rate: For the first Distribution Date, 6.070% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-3 Margin, (2) the Available Funds Cap for such Distribution
Date and (3) the Maximum Rate Cap for such Distribution Date.
Class M-3 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Certificate Principal Balance of each class of Class A, Class M-1 and Class
M-2 Certificates has been reduced to zero and a Stepdown Trigger Event exists,
or, as long as a Stepdown Trigger Event does not exist, the excess of (1) the
sum of (A) the Certificate Principal Balance of the Senior Certificates and the
Certificate Principal Balance of the Class M-1 and Class M-2 Certificates (after
taking into account distributions of the related Principal Distribution Amount
for such Distribution Date and after the allocation of Deferred Interest, if
any, for each Distribution Date) and (B) the Certificate Principal Balance of
the Class M-3 Certificates immediately prior to such Distribution Date over (2)
the lesser of (A) (i) for any Distribution Date on or prior to June 2013,
89.000% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (ii) for any Distribution Date after June 2013,
91.200% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (B) the excess of the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution Date over the Minimum
Required Overcollateralization Amount. Notwithstanding the above, (1) on any
Distribution Date prior to the Stepdown Date on which the aggregate Certificate
Principal Balance of the Class A, Class M-1 and Class M-2 Certificates has been
reduced to zero, the Class M-3 Principal Distribution Amount will equal the
lesser of (A) the outstanding Certificate Principal Balance of
-25-
the Class M-3 Certificates and (B) 100% of the Principal Distribution Amount
remaining after any distributions on the Class A, Class M-1 and Class M-2
Certificates and (2) in no event will the Class M-3 Principal Distribution
Amount with respect to any Distribution Date exceed the Certificate Principal
Balance of the Class M-3 Certificates.
Class M-4 Certificate: Any Certificate designated as a "Class M-4
Certificate" on the face thereof, in the form of Exhibit A hereto, representing
the right to distributions as set forth herein.
Class M-4 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-4 Certificates.
Class M-4 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-4 Pass-Through Rate on
the Class M-4 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or Class M-4 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-4 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class M-4
Certificates. For purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class M-4 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-4 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-4 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-4 Pass-Through Rate for the related Accrual Period. The Class M-4
Interest Carry Forward Amount shall not include any amounts attributable to an
allocation of Deferred Interest.
Class M-4 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.1000% per annum, and (ii) after the Initial
Optional Termination Date, 1.6500% per annum.
Class M-4 Pass-Through Rate: For the first Distribution Date, 6.420% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-4 Margin, (2) the Available Funds Cap for such Distribution
Date and (3) the Maximum Rate Cap for such Distribution Date.
Class M-4 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Certificate Principal Balance of each class of Class A, Class M-1, Class M-2
and Class M-3 Certificates has been reduced to zero and a Stepdown Trigger Event
exists, or, as long as a Stepdown Trigger Event does not exist, the excess of
(1) the sum of (A) the Certificate Principal Balance of the Senior Certificates
and the Certificate Principal Balance of the Class M-1, Class M-2 and Class M-3
Certificates (after taking into account distributions of the related Principal
Distribution Amount for such Distribution Date and after the allocation of
Deferred Interest, if any, for each Distribution Date) and (B) the Certificate
Principal Balance of the Class M-4 Certificates
-26-
immediately prior to such Distribution Date over (2) the lesser of (A) (i) for
any Distribution Date on or prior to June 2013, 90.500% of the aggregate Stated
Principal Balance of the Mortgage Loans as of such Distribution Date and (ii)
for any Distribution Date after June 2013, 92.400% of the aggregate Stated
Principal Balance of the Mortgage Loans as of such Distribution Date and (B) the
excess of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date over the Minimum Required Overcollateralization Amount.
Notwithstanding the above, (1) on any Distribution Date prior to the Stepdown
Date on which the aggregate Certificate Principal Balance of the Class A, Class
M-1, Class M-2 and Class M-3 Certificates has been reduced to zero, the Class
M-4 Principal Distribution Amount will equal the lesser of (A) the outstanding
Certificate Principal Balance of the Class M-4 Certificates and (B) 100% of the
Principal Distribution Amount remaining after any distributions on the Class A,
Class M-1, Class M-2 and Class M-3 Certificates and (2) in no event will the
Class M-4 Principal Distribution Amount with respect to any Distribution Date
exceed the Certificate Principal Balance of the Class M-4 Certificates.
Class M-5 Certificate: Any Certificate designated as a "Class M-5
Certificate" on the face thereof, in the form of Exhibit A hereto, representing
the right to distributions as set forth herein.
Class M-5 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-5 Certificates.
Class M-5 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-5 Pass-Through Rate on
the Class M-5 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or Class M-5 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-5 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class M-5
Certificates. For purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class M-5 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-5 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-5 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-5 Pass-Through Rate for the related Accrual Period. The Class M-5
Interest Carry Forward Amount shall not include any amounts attributable to an
allocation of Deferred Interest.
Class M-5 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.3000% per annum, and (ii) after the Initial
Optional Termination Date, 1.9500% per annum.
Class M-5 Pass-Through Rate: For the first Distribution Date, 6.620% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-5 Margin, (2) the Available Funds Cap for such Distribution
Date and (3) the Maximum Rate Cap for such Distribution Date.
-27-
Class M-5 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Certificate Principal Balance of each class of Class A, Class M-1, Class
M-2, Class M-3 and Class M-4 Certificates has been reduced to zero and a
Stepdown Trigger Event exists, or, as long as a Stepdown Trigger Event does not
exist, the excess of (1) the sum of (A) the Certificate Principal Balance of the
Senior Certificates and the Certificate Principal Balance of the Class M-1,
Class M-2, Class M-3 and Class M-4 Certificates (after taking into account
distributions of the related Principal Distribution Amount for such Distribution
Date and after the allocation of Deferred Interest, if any, for each
Distribution Date) and (B) the Certificate Principal Balance of the Class M-5
Certificates immediately prior to such Distribution Date over (2) the lesser of
(A) (i) for any Distribution Date on or prior to June 2013, 91.500% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (ii) for any Distribution Date after June 2013, 93.200% of the
aggregate Stated Principal Balance of the Mortgage Loans as of such Distribution
Date and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date over the Minimum Required
Overcollateralization Amount. Notwithstanding the above, (1) on any Distribution
Date prior to the Stepdown Date on which the aggregate Certificate Principal
Balance of the Class A, Class M-1, Class M-2, Class M-3 and Class M-4
Certificates has been reduced to zero, the Class M-5 Principal Distribution
Amount will equal the lesser of (A) the outstanding Certificate Principal
Balance of the Class M-5 Certificates and (B) 100% of the Principal Distribution
Amount remaining after any distributions on the Class A, Class M-1, Class M-2,
Class M-3 and Class M-4 Certificates and (2) in no event will the Class M-5
Principal Distribution Amount with respect to any Distribution Date exceed the
Certificate Principal Balance of the Class M-5 Certificates.
Class M-6 Certificate: Any Certificate designated as a "Class M-6
Certificate" on the face thereof, in the form of Exhibit A hereto, representing
the right to distributions as set forth herein.
Class M-6 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-6 Certificates.
Class M-6 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-6 Pass-Through Rate on
the Class M-6 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Current
Interest or Class M-6 Interest Carry Forward Amount that is recovered as a
voidable preference by a trustee in bankruptcy, less any Prepayment Interest
Shortfalls allocated on such Distribution Date to the Class M-6 Certificates and
less any Deferred Interest allocated on such Distribution Date to the Class M-6
Certificates. For purposes of calculating interest, principal distributions on a
Distribution Date will be deemed to have been made on the first day of the
Accrual Period in which such Distribution Date occurs.
Class M-6 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-6 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-6 Certificates with respect to interest on such prior Distribution Dates and
(2) interest on such excess (to the extent permitted by applicable law) at the
Class M-6 Pass-Through Rate for the related Accrual Period. The Class M-6
Interest Carry Forward Amount shall not include any amounts attributable to an
allocation of Deferred Interest.
-28-
Class M-6 Margin: As of any Distribution Date, (i) on or before the Initial
Optional Termination Date, 1.5000% per annum, and (ii) after the Initial
Optional Termination Date, 2.2500% per annum.
Class M-6 Pass-Through Rate: For the first Distribution Date, 6.820% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-6 Margin, (2) the Available Funds Cap for such Distribution
Date and (3) the Maximum Rate Cap for such Distribution Date.
Class M-6 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount if
the Certificate Principal Balance of each class of Class A, Class M-1, Class
M-2, Class M-3, Class M-4 and Class M-5 Certificates has been reduced to zero
and a Stepdown Trigger Event exists, or, as long as a Stepdown Trigger Event
does not exist, the excess of (1) the sum of (A) the Certificate Principal
Balance of the Senior Certificates and the Certificate Principal Balance of the
Class M-1, Class M-2, Class M-3, Class M-4 and Class M-5 Certificates (after
taking into account distributions of the related Principal Distribution Amount
for such Distribution Date and after the allocation of Deferred Interest, if
any, for each Distribution Date) and (B) the Certificate Principal Balance of
the Class M-6 Certificates immediately prior to such Distribution Date over (2)
the lesser of (A) (i) for any Distribution Date on or prior to June 2013,
92.875% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (ii) for any Distribution Date after June 2013,
94.300% of the aggregate Stated Principal Balance of the Mortgage Loans as of
such Distribution Date and (B) the excess of the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution Date over the Minimum
Required Overcollateralization Amount. Notwithstanding the above, (1) on any
Distribution Date prior to the Stepdown Date on which the aggregate Certificate
Principal Balance of the Class A, Class M-1, Class M-2, Class M-3, Class M-4 and
Class M-5 Certificates has been reduced to zero, the Class M-6 Principal
Distribution Amount will equal the lesser of (A) the outstanding Certificate
Principal Balance of the Class M-6 Certificates and (B) 100% of the Principal
Distribution Amount remaining after any distributions on the Class A, Class M-1,
Class M-2, Class M-3, Class M-4 and Class M-5 Certificates and (2) in no event
will the Class M-6 Principal Distribution Amount with respect to any
Distribution Date exceed the Certificate Principal Balance of the Class M-6
Certificates.
Class P Certificate: Any one of the Class P Certificates as designated on
the face thereof substantially in the forum of annexed hereto as Exhibit A-4,
executed by the Securities Administrator and authenticated and delivered by the
Securities Administrator representing the right to distributions of Prepayment
Charges received on the Prepayment Charge Mortgage Loans as set forth herein.
Class R Certificate: The Class R Certificate executed, authenticated and
delivered by the Securities Administrator substantially in the form annexed
hereto as Exhibit A-3 and evidencing the ownership of the residual interest in
each REMIC.
Class R Certificate Principal Balance: As of any date of determination, the
aggregate Certificate Principal Balance of the Class R Certificate.
Class R Current Interest: As of any Distribution Date, the interest accrued
during the related Accrual Period at the Class R Pass-Through Rate on the Class
R Certificate Principal
-29-
Balance as of such Distribution Date plus the portion of any previous
distributions on such Class in respect of Current Interest or a Class R Interest
Carry Forward Amount that is recovered as a voidable preference by a trustee in
bankruptcy, less any Prepayment Interest Shortfalls allocated on such
Distribution Date to the Class R Certificate and less any Deferred Interest
allocated on such Distribution Date to the Class R Certificates. For purposes of
calculating interest, principal distributions on a Distribution Date will be
deemed to have been made on the first day of the Accrual Period in which such
Distribution Date occurs.
Class R Interest Carry Forward Amount: As of any Distribution Date, the sum
of (1) the excess of (A) the Class R Current Interest with respect to prior
Distribution Dates over (B) the amount actually distributed to the Class R
Certificate with respect to interest on such prior Distribution Dates and (2)
interest on such excess (to the extent permitted by applicable law) at the Class
R Pass-Through Rate for the related Accrual Period. The Class R Interest Carry
Forward Amount shall not include amounts attributable to an allocation of
Deferred Interest.
Class R Margin: With respect to any Distribution Date, (i) on or before the
Initial Optional Termination Date, 0.1900%, and (ii) after the Initial Optional
Termination Date, 0.3800%.
Class R Pass-Through Rate: For the first Distribution Date, 5.510% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class R Margin, (2) the Available Funds Cap for such Distribution Date
and (3) the Maximum Rate Cap for such Distribution Date.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinate Certificates, the fraction (expressed as a percentage)
the numerator of which is the Certificate Principal Balance of such Class of
Subordinate Certificates immediately prior to such Distribution Date and the
denominator of which is the aggregate of the Certificate Principal Balances of
all Classes of Certificates immediately prior to such Distribution Date.
Class SWR Interest: The sole class of "residual interest" in the SWAP
REMIC.
Closing Date: June 29, 2007.
Code: The Internal Revenue Code of 1986, as amended.
Collection Account: An account established and maintained for the benefit
of Certificateholders by each Servicer with respect to the related Mortgage
Loans and with respect to REO Property pursuant to the Applicable Servicing
Agreement and this Agreement and designated "[Name of Servicer], as servicer for
Xxxxx Fargo Bank, N.A., in trust for registered holders of Xxxxxxx Xxxxx
Alternative Note Asset Trust, Mortgage Pass-Through Certificates, Series
2007-OAR3." Each Collection Account shall be an Eligible Account. Funds in a
Collection Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement and the Applicable Servicing
Agreements.
Commission: The Securities and Exchange Commission.
-30-
Compensating Interest: For any Distribution Date and all Principal
Prepayments in respect of a Mortgage Loan that are received during the period
from the first day of the related Prepayment Period through the last day of the
calendar month preceding such Distribution Date, a payment made by the
applicable Servicer in an amount equal to the interest accrued at the Net
Mortgage Rate for that Mortgage Loan from the date of prepayment through the
30th day of the preceding calendar month; provided, however, that such amount
shall not exceed (i) with respect to Wilshire and any Principal Prepayment in
Full, the product of (a) 50% of the Servicing Fee Rate and (b) the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date or
(ii) with respect to RFC and a Principal Prepayment in Full or a Curtailment,
the product of (a) the Servicing Fee Rate and (b) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date; and provided further,
however, that any month consisting of less than 30 days shall be deemed to
consist of 30 days.
Compensating Interest Payment: As defined in Section 6.05.
Cooperative: A corporation that has been formed for the purpose of
cooperative apartment ownership.
Cooperative Assets: Shares issued by Cooperatives, the related Cooperative
Lease and any other collateral securing the Cooperative Loans.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the cooperative apartment occupied
by the Mortgagor and relating to the related Cooperative Assets, which lease or
agreement confers an exclusive right to the holder of such Cooperative Assets to
occupy such apartment.
Cooperative Loan: The indebtedness of a Mortgagor evidenced by a Mortgage
Note which is secured by Cooperative Assets and which is being sold to the
Depositor pursuant to this Agreement, the Mortgage Loans so sold being
identified in the Mortgage Loan Schedule.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Corporate Trust Office: With respect to the Trustee, the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business in connection with this Agreement shall be
administered, which office at the date of the execution of this instrument is
located at HSBC Bank USA, National Association, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Issuer Services - Xxxxxxx Xxxxx Mortgage Investors, Inc.,
MANA Series 2007-OAR3, or at such other address as the Trustee may designate
from time to time by notice to the Certificateholders, the Depositor and the
Master Servicer and with respect to the Securities Administrator, for
Certificate transfer purposes, Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attn: Corporate Trust Services - MANA
2007-OAR3, and for all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx, 00000, Attn: Client Service Manager - MANA 2007-OAR3.
Corresponding Certificates: With respect to the Class LTA-1 Interest, the
Class A-1 and Class R Certificates. With respect to the Class LTA-2 Interest,
the Class A-2 Certificates. With respect to the Class LTA-3 Interest, the Class
A-3 Certificates. With respect to the Class LTM-1
-31-
Interest, the Class M-1 Certificates. With respect to the Class LTM-2 Interest,
the Class M-2 Certificates. With respect to the Class LTM-3 Interest, the Class
M-3 Certificates. With respect to the Class LTM-4 Interest, the Class M-4
Certificates. With respect to the Class LTM-5 Interest, the Class M-5
Certificates. With respect to the Class LTM-6 Interest, the Class M-6
Certificates. With respect to the Class LTB-1 Interest, the Class B-1
Certificates. With respect to the Class LTB-2 Interest, the Class B-2
Certificates. With respect to the Class LTB-3 Interest, the Class B-3
Certificates.
Corresponding REMIC Regular Interest: For each Class of Certificates, the
interest in the Upper Tier REMIC listed on the same row in the table entitled
"Upper Tier REMIC" in the Preliminary Statement.
Corridor Contract: The long form confirmation, between the Securities
Administrator on behalf of the Issuing Entity and the Cap Contract Counterparty
(in the form of Exhibit N-1 hereto).
Corridor Contract Account: The separate Eligible Account created and
maintained by the Supplemental Interest Trust Trustee pursuant to Section
6.01(l) in the name of the Securities Administrator for the benefit of the
Issuing Entity and designated "Xxxxx Fargo Bank, National Association, as
Securities Administrator for Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, MANA Series 2007-OAR3 - Corridor Contract Account."
Funds in the Corridor Contract Account shall be held in trust for the Issuing
Entity for the uses and purposes set forth in this Agreement.
Corridor Contract Notional Balance: With respect to any Distribution Date,
the Corridor Contract Notional Balance set forth for such Distribution Date in
the One-Month LIBOR Corridor Table attached hereto as Exhibit H.
Corridor Contract Termination Date: The Distribution Date in May 2008.
Current Interest: Any of the Class A-1 Current Interest, the Class A-2
Current Interest, the Class A-3 Current Interest, the Class R Current Interest,
the Class M-1 Current Interest, the Class M-2 Current Interest, the Class M-3
Current Interest, the Class M-4 Current Interest, the Class M-5 Current
Interest, the Class M-6 Current Interest, the Class B-1 Current Interest, the
Class B-2 Current Interest, the Class B-3 Current Interest and the Class C
Current Interest.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Agreement: An agreement, dated as of the Closing Date among the
Depositor, the Master Servicer, the Securities Administrator, the Trustee and
the Custodian in substantially the form of Exhibit G hereto.
Custodian: Xxxxx Fargo Bank, N.A., including any successors in interest, or
any successor custodian appointed pursuant to the provisions hereof and of the
Custodial Agreement.
Cut-off Date: June 1, 2007.
-32-
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the calendar day
immediately preceding the Cut-off Date after application of all payments of
principal due on or prior to the Cut-off Date, whether or not received, and all
principal prepayments received prior to the Cut-off Date, but without giving
effect to any installments of principal received in respect of Due Dates after
the Cut-off Date.
Debt Service Reduction: Any reduction of the Monthly Payments which a
Mortgagor is obligated to pay with respect to a Mortgage Loan as a result of any
proceeding under the Bankruptcy Code or any other similar state law or other
proceeding.
Defaulted Swap Termination Payment: Any payment required to be made by the
Supplemental Interest Trust to the Swap Counterparty pursuant to the Swap
Agreement as a result of an event of default under the Swap Agreement with
respect to which the Swap Counterparty is the defaulting party or a termination
event under that agreement (other than illegality or a tax event) with respect
to which the Swap Counterparty is the sole Affected Party (as defined in the
Swap Agreement).
Defective Mortgage Loan: A Mortgage Loan replaced or to be replaced by one
or more Substitute Mortgage Loans.
Deferred Interest: Any interest shortfall resulting from Net Negative
Amortization.
Deficient Valuation: With respect to any Mortgage Loan, a valuation of the
related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
Definitive Certificates: As defined in Section 5.06.
Delinquent: A Mortgage Loan is "delinquent" if any payment due thereon is
not made pursuant to the terms of such Mortgage Loan by the close of business on
the day such payment is scheduled to be due. A Mortgage Loan is "30 days
delinquent" if such payment has not been received by the close of business on
the corresponding day of the month immediately succeeding the month in which
such payment was due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on the 31st day
of such month), then on the last day of such immediately succeeding month. With
respect to any Mortgage Loan due on any day other than the first day of the
month, such Mortgage Loan shall be deemed to be due on the first day of the
immediately succeeding month. Similarly for "60 days delinquent," "90 days
delinquent" and so on.
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation,
or any successor in interest.
Depository: The Depository Trust Company, the nominee of which is Cede &
Co., or any successor thereto.
-33-
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Designated Depository Institution: A depository institution (commercial
bank, federal savings bank, mutual savings bank or savings and loan association)
or trust company (which may include the Trustee), the deposits of which are
fully insured by the FDIC to the extent provided by law.
Determination Date: With respect to any Distribution Date, the 15th day of
the month of such Distribution Date or, if such 15th day is not a Business Day,
the immediately preceding Business Day.
Disqualified Organization: A "disqualified organization" as defined in
Section 860 E(e)(5) of the Code.
Distribution Account: The trust account or accounts created and maintained
pursuant to Section 4.04, which shall be denominated "Xxxxx Fargo Bank, National
Association, as Securities Administrator for HSBC Bank USA, National
Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MANA Series 2007-OAR3 - Distribution
Account." The Distribution Account shall be an Eligible Account.
Distribution Account Deposit Date: The Business Day prior to each
Distribution Date.
Distribution Date: The 25th day of any month, beginning in July 2007, or,
if such 25th day is not a Business Day, the Business Day immediately following.
Due Date: With respect to any Distribution Date and any Mortgage Loan, the
day during the related Due Period on which a Scheduled Payment is due.
Due Period: With respect to any Distribution Date and each Mortgage Loan,
the period commencing on the second day of the month preceding the month in
which the Distribution Date occurs and ending at the close of business on the
first day of the month in which the Distribution Date occurs.
Eligible Account: Any of (i) a segregated account maintained with a federal
or state chartered depository institution (A) the short-term obligations of
which are rated A-1 or better by S&P and P-1 by Xxxxx'x at the time of any
deposit therein or (B) the long term unsecured debt obligations of which are
rated at least "AA-" by S&P and "A+" by Fitch if the deposits are to be held in
the account more than 30 days; following a downgrade, withdrawal, or suspension
of such institution's rating, each account should promptly (and in any case
within not more than 30 calendar days) be moved to a qualifying institution or
to one or more segregated trust accounts in the trust department of such
institution, if permitted, (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company with trust powers acting in its fiduciary capacity or (iii) a segregated
account or accounts of a depository institution acceptable to the NIMs Insurer
and the Rating Agencies (as evidenced by a letter from each Rating Agency that
use of any such account as the Distribution Account will not have an
-34-
adverse effect on the then-current ratings assigned to the Classes of the
Certificates then rated by the Rating Agencies). Eligible Accounts may bear
interest.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificates: The Class C, the Class P and the Subordinate
Certificates and any other Certificate, as long as the acquisition and holding
of such Certificate is not covered by and exempt under an underwriter's
exemption.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that would satisfy the requirements of
Prohibited Transaction Exemption 90-29, Exemption Application No. D-8012, 55
Fed. Reg. 21459 (1990), as amended, granted to the underwriter by the United
States Department of Labor (or any other applicable underwriter's exemption
granted by the United States Department of Labor), except, in relevant part, for
the requirement that the certificates have received a rating at the time of
acquisition that is in one of the two highest generic rating categories by at
least one of the Rating Agencies.
Escrow Account: As defined in Section 13.06 hereof.
Event of Default: An event of default described in Section 8.01.
Excess Interest: On any Distribution Date, for the Senior Certificates,
Class M and Class B Certificates, the excess, if any, of (1) the amount of
interest such Class of Certificates is entitled to receive on such Distribution
Date over (2) the amount of interest such Class of Certificates would have been
entitled to receive on such Distribution Date at an interest rate equal to the
REMIC Pass-Through Rate.
Excess Liquidation Proceeds: To the extent that such amount is not required
by law to be paid to the related Mortgagor, the amount, if any, by which
Liquidation Proceeds with respect to a Liquidated Mortgage Loan exceed the sum
of (i) the Outstanding Principal Balance of such Mortgage Loan and accrued but
unpaid interest at the related Mortgage Interest Rate through the last day of
the month in which the related Liquidation Date occurs, plus (ii) related
Liquidation Expenses.
Excess Proceeds: With respect to any Liquidated Loan, any Liquidation
Proceeds that are in excess of the sum of (1) the unpaid principal balance of
such Liquidated Loan as of the date of such liquidation plus (2) interest at the
Mortgage Interest Rate from the Due Date as to which interest was last paid or
advanced to Certificateholders (and not reimbursed to Wilshire) up to the Due
Date in the month in which such Liquidation Proceeds are required to be
distributed on the unpaid principal balance of such Liquidated Loan outstanding
during each Due Period as to which such interest was not paid or advanced.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Extra Principal Distribution Amount: With respect to any Distribution Date,
(1) prior to the Stepdown Date, the excess, if any, of (A) the sum of (x) the
aggregate Certificate Principal Balance of the Certificates (other than the
Class C Certificates) reduced by the Principal Funds with respect to such
Distribution Date and (y) $5,512,471 over (B) the aggregate Stated Principal
-35-
Balance of the Mortgage Loans as of such Distribution Date and (2) on and after
the Stepdown Date, the excess, if any, of (A) the sum of (x) the aggregate
Certificate Principal Balance of the Certificates (other than the Class C
Certificates) reduced by the Principal Funds with respect to such Distribution
Date and (y) the greater of (a) (I) on or prior to the Distribution Date in June
2013, 3.50% of the aggregate Stated Principal Balance of the Mortgage Loans as
of such Distribution Date and (II) after the Distribution Date in June 2013,
2.80% of the aggregate Stated Principal Balance of the Mortgage Loans as of such
Distribution Date and (b) the Minimum Required Overcollateralization Amount less
(B) the aggregate Stated Principal Balance of the Mortgage Loans; provided,
however, that if on any Distribution Date a Stepdown Trigger Event is in effect,
the Extra Principal Distribution Amount will not be reduced to the applicable
percentage of then-current aggregate Stated Principal Balance of the Mortgage
Loans (and will remain fixed at the applicable percentage of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Due Date immediately
prior to the Stepdown Trigger Event) until the next Distribution Date on which
the Stepdown Trigger Event is not in effect.
Extraordinary Trust Fund Expenses: Any amounts reimbursable to the Master
Servicer, the Servicers or the Depositor pursuant to this Agreement, including
but not limited to Sections 4.03, 4.05 and 7.04, any amounts reimbursable to the
Trustee and the Securities Administrator from the Trust Fund pursuant to this
Agreement, including but not limited to Section 9.05, and any other costs,
expenses, liabilities and losses borne by the Trust Fund (exclusive of any cost,
expense, liability or loss that is specific to a particular Mortgage Loan or REO
Property and is taken into account in calculating a Realized Loss in respect
thereof) for which the Trust Fund has not and, in the reasonable good faith
judgment of the Securities Administrator, shall not, obtain reimbursement or
indemnification from any other Person.
Xxxxxx Xxx: Federal National Mortgage Association or any successor thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
Final Certification: The certification substantially in the form of Exhibit
Two to the Custodial Agreement.
Final Maturity Reserve Account: The separate Eligible Account into which
reserve funds are deposited and available if needed to make a payment to
Certificateholders on the Final Scheduled Distribution Date as specified herein
and designated "Xxxxx Fargo Bank, National Association, as Securities
Administrator for Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, MANA Series 2007-OAR3 - Final Maturity Reserve Account.".
Final Maturity Reserve Rate: A per annum rate of 1.00%.
Final Scheduled Distribution Date: With respect to the Certificates, the
Distribution Date in July 2037.
Fitch: Fitch Ratings or its successor in interest.
Floating Rate Certificate Carryover: With respect to a Distribution Date,
in the event that the Pass-Through Rate for a class of Senior, Class M or Class
B Certificates is based upon the Available Funds Cap or the Maximum Rate Cap,
the sum of (A) the excess of (1) the amount of
-36-
interest that such Class would have been entitled to receive on such
Distribution Date had the Pass-Through Rate for that Class not been calculated
based on the Available Funds Cap or the Maximum Rate Cap, up to but not
exceeding the greater of (a) the Maximum Rate Cap or (b) the sum of (i) the
Available Funds Cap and (ii) the product of (AA) a fraction, the numerator of
which is 360 and the denominator of which is the actual number of days in the
related Accrual Period and (BB) the sum of (x) the quotient obtained by dividing
(I) an amount equal to the proceeds, if any, payable under the Corridor Contract
with respect to such Distribution Date and (II) the aggregate Certificate
Principal Balance of each of the Classes of Certificates to which such Corridor
Contract relates for such Distribution Date and (y) the quotient obtained by
dividing (I) an amount equal to any Net Swap Payments owed by the Swap
Counterparty for such Distribution Date by (II) the aggregate Stated Principal
Balance of the Mortgage Loans as of the immediately preceding Distribution Date
over (2) the amount of interest such Class was entitled to receive on such
Distribution Date based on the Available Funds Cap, (B) the unpaid portion of
any such excess from prior Distribution Dates (and interest accrued thereon at
the then applicable Pass-Through Rate for such class, without giving effect to
the Available Funds Cap or the Maximum Rate Cap) and (C) any amount previously
distributed with respect to Floating Rate Certificate Carryover for such Class
that is recovered as a voidable preference by a trustee in bankruptcy.
Form 8-K Disclosure Information: As defined in Section 3.18(a).
Xxxxxxx Mac: Xxxxxxx Mac, formerly the Federal Home Loan Mortgage
Corporation, or any successor thereto.
Gross Margin: As to each Mortgage Loan, the fixed percentage set forth in
the related Mortgage Note and indicated on the Mortgage Loan Schedule which
percentage is added to the related Index on each Interest Adjustment Date to
determine (subject to rounding, the minimum and maximum Mortgage Interest Rate
and the Periodic Rate Cap) the Mortgage Interest Rate until the next Interest
Adjustment Date.
Indemnified Party: As defined in Section 16.07.
Indemnified Persons: The Trustee, the Master Servicer, the Servicers, the
Depositor, the Securities Administrator, the NIMs Insurer and their officers,
directors, agents and employees and, with respect to the Trustee, any separate
co-trustee and its officers, directors, agents and employees.
Indenture: An indenture relating to the issuance of the NIM Notes, which
may be guaranteed by the NIMs Insurer.
Independent: When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor, the Master Servicer and
their respective Affiliates, (b) does not have any direct financial interest in
or any material indirect financial interest in the Depositor or the Master
Servicer or any Affiliate thereof, and (c) is not connected with the Depositor
or the Master Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor or the Master Servicer or any Affiliate thereof merely because
such Person is the beneficial owner of 1% or less of any class of
-37-
securities issued by the Depositor or the Master Servicer or any Affiliate
thereof, as the case may be.
Index: The index, if any, specified in a Mortgage Note by reference to
which the related Mortgage Interest Rate will be adjusted from time to time.
Initial Certification: The certification substantially in the form of
Exhibit One to the Custodial Agreement.
Initial Certificate Principal Balance: With respect to any Regular
Certificate, the amount designated "Initial Certificate Principal Balance" on
the face thereof.
Initial Optional Termination Date: The first Distribution Date following
the date on which the aggregate Stated Principal Balance of the Mortgage Loans
is less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
Insurance Policy: With respect to any Mortgage Loan, any standard hazard
insurance policy, flood insurance policy or title insurance policy.
Insurance Proceeds: Amounts paid by the insurer under any Insurance Policy
covering any Mortgage Loan or Mortgaged Property other than amounts required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note or
Security Instrument and other than amounts used to repair or restore the
Mortgaged Property or to reimburse insured expenses.
Interest Adjustment Date: With respect to a Mortgage Loan, the date, if
any, specified in the related Mortgage Note on which the Mortgage Interest Rate
is subject to adjustment.
Interest Carry Forward Amount: Any of the Class A-1 Interest Carry Forward
Amount, the Class A-2 Interest Carry Forward Amount, the Class A-3 Interest
Carry Forward Amount, the Class R Interest Carry Forward Amount, the Class M-1
Interest Carry Forward Amount, the Class M-2 Interest Carry Forward Amount, the
Class M-3 Interest Carry Forward Amount, the Class M-4 Interest Carry Forward
Amount, the Class M-5 Interest Carry Forward Amount, the Class M-6 Interest
Carry Forward Amount, the Class B-1 Interest Carry Forward Amount, the Class B-2
Interest Carry Forward Amount, the Class B-3 Interest Carry Forward Amount or
the Class C Interest Carry Forward Amount, as the case may be.
Interest Determination Date: Each date that is the second LIBOR Business
Day preceding the commencement of each Accrual Period for the Certificates.
Interest Funds: With respect to any Distribution Date and the Mortgage
Loans, the sum, without duplication, of (1) all interest due during the related
Due Period that is received before the related Servicer Remittance Date less the
Servicing Fee, (2) all Advances relating to interest, (3) all Compensating
Interest Payments, (4) Liquidation Proceeds collected during the related
Prepayment Period (to the extent such liquidation proceeds relate to interest),
(5) proceeds of any Mortgage Loan purchased by the Depositor or any transferor
under the Pooling and Servicing Agreement during the related Prepayment Period
for document defects, breach of a representation or warranty, realization upon
default or optional termination (to the extent such proceeds relate to
interest), (6) Prepayment Charges received with respect to the related
-38-
Mortgage Loans, less all non-recoverable Advances and Servicing Advances
relating to interest and certain indemnification amounts, expenses reimbursed to
the Trustee, Securities Administrator, Master Servicer and the Servicers (not
limited to such Advances, Servicing Advances, interest, amounts and expenses set
forth in this clause (6)) and (7) as increased by the lesser of (x) the
aggregate amount of items (2), (3), (4) and (5) of the definition of Principal
Funds collected during the related Prepayment Period and (y) the aggregate
amount of Negative Amortization during the related Prepayment Period.
Investor Representation Letter: As defined in Section 5.02(b).
Issuing Entity: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series
2007-OAR3.
Latest Possible Maturity Date: The latest maturity date for any Mortgage
Loan in the Trust Fund plus one month.
LIBOR Business Day: Any day on which banks in the City of London, England
and New York City, U.S.A. are open and conducting transactions in foreign
currency and exchange.
LIBOR Certificates: Any of the Certificates (other than the Class C and
Class P Certificates).
Liquidated Mortgage Loan: Any defaulted Mortgage Loan (including any REO
Property) as to which the applicable Servicer has determined that all amounts it
expects to recover from or on account of such Mortgage Loan have been recovered.
Liquidation Date: With respect to any Liquidated Mortgage Loan, the date on
which the applicable Servicer has certified that such Mortgage Loan has become a
Liquidated Mortgage Loan.
Liquidation Expenses: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Master
Servicer or the applicable Servicer in connection with the liquidation of such
Mortgage Loan and the related Mortgaged Property, such expenses including (a)
property protection expenses, (b) property sales expenses, (c) foreclosure and
sale costs, including court costs and reasonable attorneys' fees, and (d)
similar expenses reasonably paid or incurred in connection with liquidation.
Liquidation Proceeds: With respect to any Mortgage Loan, cash received in
connection with the liquidation of a defaulted Mortgage Loan, whether through
trustee's sale, foreclosure sale or otherwise, and amounts received through
Insurance Proceeds and condemnation proceeds.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the
Original Value of the related Mortgaged Property.
Lower Collar: With respect to each Distribution Date, the applicable per
annum rate set forth under the heading "1ML Strike Lower Collar" in the
One-Month LIBOR Corridor Table (set forth on Exhibit H).
-00-
Xxxxx Xxxx REMIC: As described in the Preliminary Statement and Section
9.12.
Lower Tier REMIC Interests: Each of the Class LTA-1 Interest, the Class
LTA-2 Interest, the Class LTA-3 Interest, the Class LTM-1 Interest, the Class
LTM-2 Interest, the Class LTM-3 Interest, the Class LTM-4 Interest, the Class
LTM-5 Interest, the Class LTM-6 Interest, the Class LTB-1 Interest, the Class
LTB-2 Interest, the Class LTB-3 Interest, the Class LTX Interest, the Class
LT-IO Interest, the Class LT-Coupon Strip Interest and the Class LTR Interest.
Lower Tier REMIC Marker Interests: Each of the classes of Lower Tier REMIC
Regular Interests other than the Class LTX Interest, the Class LT-Coupon Strip
Interest and the Class LT-IO Interest.
Lower Tier REMIC Regular Interests: Each of the Lower Tier REMIC Interests
other than the Class LTR Interest.
Lower Tier REMIC Subordinated Balance Ratio: Not applicable.
Master Servicer: Xxxxx Fargo Bank, N.A. including any successors in
interest who meet the qualifications for a master servicer set forth in this
Agreement, and any successor master servicer appointed hereunder.
Master Servicer Collection Account: The trust account or accounts created
and maintained pursuant to Section 4.02, which shall be denominated "Xxxxx Fargo
Bank, National Association as Master Servicer for HSBC Bank USA, National
Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MANA Series 2007-OAR3 - Master Servicer
Collection Account." The Master Servicer Collection Account shall be an Eligible
Account.
Master Servicing Compensation: The meaning specified in Section 3.14.
Maximum Lifetime Mortgage Rate: The maximum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
Maximum Rate Cap: With respect to a Distribution Date, the per annum rate
equal to the product of (i) 12, (ii) the quotient of (x) the total scheduled
interest that would have been due on the Mortgage Loans had the Mortgage Loans
provided for interest at their maximum lifetime Net Mortgage Rates less any Net
Swap Payments or Swap Termination Payments owed to the Swap Counterparty and
amounts deposited into the Final Maturity Reserve Account for such Distribution
Date (other than Defaulted Swap Termination Payments), and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the first day of the
related Accrual Period (or, in the case of the first Distribution Date, as of
the Cut-off Date) and (iii) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the related Accrual Period.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS System.
-40-
MERS System: The system of recording transfers of mortgage electronically
maintained by MERS.
MIN: The loan number for any MERS Loan.
Minimum Lifetime Mortgage Rate: The minimum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
Minimum Payment: The minimum Monthly Payment required to be paid by a
Mortgagor.
Minimum Required Overcollateralization Amount: An amount equal to the
product of (x) 0.50% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
MLML: Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation, or any
successor in interest.
Monthly Payment: With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan which is payable by the
related Mortgagor from time to time under the related Mortgage Note, determined:
(a) after giving effect to the Mortgagor's choice of payment to the extent
permitted by the Mortgage Note, (b) after giving effect to (i) any Deficient
Valuation and/or Debt Service Reduction with respect to such Mortgage Loan and
(ii) any reduction in the amount of interest collectible from the related
Mortgagor pursuant to the Relief Act; (c) without giving effect to any extension
granted or agreed to by the applicable Servicer pursuant to the Applicable
Servicing Agreement; and (d) on the assumption that all other amounts, if any,
due under such Mortgage Loan are paid when due.
Monthly Statement: The statement distributed to Certificateholders pursuant
to Section 6.03.
Moody's: Xxxxx'x Investors Service, Inc. or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on, or first priority security interest in, a Mortgaged Property securing a
Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01(b) pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues from time
to time on any Mortgage Loan pursuant to the related Mortgage Note.
Mortgage Loan: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the Trust Fund,
as identified in the Mortgage Loan Schedule, including a mortgage loan the
property securing which has become an REO Property.
-41-
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement,
dated as of June 1, 2007, between the Sponsor, as seller, and the Depositor, as
purchaser, and all amendments thereof and supplements thereto, attached hereto
as Exhibit J.
Mortgage Loan Schedule: The Mortgage Loan Schedule, attached hereto as
Exhibit B, with respect to the Mortgage Loans and as amended from time to time
to reflect the repurchase or substitution of Mortgage Loans pursuant to this
Agreement.
Mortgage Note: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
Mortgage Pool: The pool of Mortgage Loans, identified on Exhibit B from
time to time, and any REO Properties acquired in respect thereof.
Mortgaged Property: Land and improvements securing the indebtedness of a
Mortgagor under the related Mortgage Loan or, in the case of REO Property, such
REO Property.
Mortgagor: The obligor on a Mortgage Note.
Negative Amortization: With respect to each Distribution Date, the amount
of interest on the Mortgage Loans that the related Mortgagors are not obligated
to pay as interest (and which shall be added to the Stated Principal Balance of
each such Mortgage Loan) due to the negative amortization feature of such
Mortgage Loans, in each case during the related Due Period.
Negative Amortization Certificate: Any Certificate other than the Class P
Certificate.
Net Excess Cashflow: Any Interest Funds and Principal Funds not otherwise
required to be distributed with respect to principal of and interest on the
Certificates and not otherwise required to be distributed to the Class P
Certificates, less any Net Swap Payments or Swap Termination Payment to the Swap
Counterparty, any amounts deposited in the Final Maturity Reserve Account and
the Issuing Entity expenses.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, Liquidation
Proceeds net of (i) Liquidation Expenses which are payable therefrom by the
applicable Servicer or the Master Servicer in accordance with the Applicable
Servicing Agreement and (ii) unreimbursed advances by the applicable Servicer or
the Master Servicer and Advances.
Net Mortgage Rate: With respect to each Mortgage Loan, the Mortgage
Interest Rate in effect from time to time less the Servicing Fee Rate (expressed
as a per annum rate).
Net Negative Amortization: For any Distribution Date, the excess, if any,
of (i) the Negative Amortization with respect to the Mortgage Loans for the
related calendar month prior to that Distribution Date, over (ii) the aggregate
amount of items (2), (3), (4) and (5) of the definition of Principal Funds
collected during the related Prepayment Period.
Net Rate: The per annum rate set forth in footnote 3 to the description of
the Lower Tier REMIC in the Preliminary Statement hereto (such rate being based
on the weighted average of the interest rates on the SWAP REMIC Regular
Interests as adjusted and as set forth in such footnote).
-42-
Net Swap Payment: With respect to any Distribution Date, any net payment
(other than a Swap Termination Payment or Defaulted Swap Termination Payment)
made by the Supplemental Interest Trust to the Swap Counterparty on the related
Fixed Rate Payer Payment Date (as defined in the Swap Agreement) or made by the
Swap Counterparty to the Supplemental Interest Trust on the related Floating
Rate Payer Payment Date (as defined in the Swap Agreement). In each case, the
Net Swap Payment shall not be less than zero.
Net WAC: With respect to any Distribution Date, the weighted average Net
Mortgage Rate for the Mortgage Loans calculated based on the respective Net
Mortgage Rates and the Stated Principal Balances of such Mortgage Loans as of
the preceding Distribution Date (or, in the case of the first Distribution Date,
as of the Cut-off Date) ; provided, however, that for purposes of computing such
weighted average with respect to any Distribution Date on which amounts are
required to be deposited into the Final Maturity Reserve Account, the Net
Mortgage Rate of each 40-Year Mortgage Loan shall be reduced by the Final
Maturity Reserve Rate.
NIMs Insurer: Any of the one or more insurers, if any, that may be
guaranteeing certain payments under any NIM Notes; provided, that upon the
payment in full of the NIM Notes, all rights of the NIMs Insurer hereunder shall
terminate.
NIMs Insurer Default: As defined in Section 11.14.
NIM Notes: The net interest margin or excess cashflow securities to be
issued pursuant to an indenture.
Non-Recoverable Advance: Any portion of an Advance previously made or
proposed to be made by a Servicer that, in the good faith judgment of such
Servicer, will not or, in the case of a current delinquency, would not, be
ultimately recoverable by such Servicer from the related Mortgagor, related
Liquidation Proceeds or otherwise related to the Mortgage Loans.
Non-Recoverable Servicing Advance: Any portion of a Servicing Advance
previously made or proposed to be made by a Servicer that, in the good faith
judgment of such Servicer, will not or, in the case of a current Servicing
Advance, would not, be ultimately recoverable by such Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise related to the Mortgage
Loans.
Non-Supported Interest Shortfall: As defined in Section 13.23.
Offered Certificate: Any Senior Certificate or Subordinate Certificate
issued hereunder.
Officer's Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President or Assistant
Vice President or other authorized officer of the Servicers, the Master Servicer
or the Depositor, as applicable, and delivered to the Trustee, as required by
this Agreement.
One-Month LIBOR: With respect to any Accrual Period, the rate determined by
the Securities Administrator on the related Interest Determination Date on the
basis of (1) the offered rates for one-month United States dollar deposits from
Reuters, as of 11:00 a.m. (London time) on such Interest Determination Date (or
if such service is no longer offered, such other
-43-
service for displaying LIBOR or comparable rates as may be reasonably selected
by the Securities Administrator) or (2) if such rate does not appear on Reuters
as of 11:00 a.m. (London time), the Securities Administrator will determine such
rate on the basis of the offered rates of the Reference Banks for one-month
United States dollar deposits, as such rates appear on the Reuters Screen LIBO
Page, as of 11:00 a.m. (London time) on such Interest Determination Date:
(i) If on such Interest Determination Date two or more Reference Banks
provide such offered quotations, One-Month LIBOR for the related Accrual
Period shall be the arithmetic mean of such offered quotations (rounded
upwards if necessary to the nearest whole multiple of 0.03125%).
(ii) If on such Interest Determination Date fewer than two Reference
Banks provide such offered quotations, One-Month LIBOR for the related
Accrual Period shall be the higher of (i) One-Month LIBOR as determined on
the previous Interest Determination Date and (ii) the Reserve Interest
Rate.
Opinion of Counsel: A written opinion of counsel who is or are acceptable
to the Trustee and who, unless required to be Independent (an "Opinion of
Independent Counsel"), may be internal counsel for the Master Servicer or the
Depositor.
Optional Termination: The termination hereunder of that portion of the
Trust Fund related to the Certificates pursuant to Section 10.01(a) hereof.
Optional Termination Amount: The amount received by the Securities
Administrator in connection with any purchase of all of the Mortgage Loans and
REO Properties pursuant to Section 10.01(b) hereof.
Optional Termination Price: On any date after the Initial Optional
Termination Date, an amount equal to the sum of (A) the aggregate Stated
Principal Balance of each Mortgage Loan (other than any Mortgage Loan that has
become an REO Property) as of the Distribution Date on which the proceeds of the
Optional Termination are distributed to the Certificateholders, plus accrued
interest thereon at the applicable Mortgage Interest Rate as of the Due Date
preceding the Distribution Date on which the proceeds of the Optional
Termination are distributed to Certificateholders and the fair market value of
any REO Property, plus accrued interest thereon as of the Distribution Date on
which the proceeds of the Optional Termination are distributed to
Certificateholders, (B) any unreimbursed out-of-pocket costs and expenses, fees
and indemnity amounts owed to the Master Servicer, the Trustee or the Securities
Administrator (including any amounts incurred by the Securities Administrator in
connection with conducting the Auction), or Wilshire and any unpaid or
unreimbursed Servicing Fees, Advances and Servicing Advances, (C) any
unreimbursed costs, penalties and/or damages incurred by the Trust Fund in
connection with any violation relating to any of the Mortgage Loans of any
predatory or abusive lending law, (D) in the event an Auction has been
conducted, all reasonable fees and expenses incurred by the Securities
Administrator to conduct the Auction and (E) any unpaid Net Swap Payments, any
Swap Termination Payment and any other amounts owed to the Swap Counterparty and
determined in accordance with the Swap Agreement.
Original Value: The lesser of (i) the Appraised Value or (ii) the sales
price of a Mortgaged Property at the time of origination of a Mortgage Loan,
except in instances where
-44-
either clauses (i) or (ii) is unavailable, the other may be used to determine
the Original Value, or if both clauses (i) and (ii) are unavailable, Original
Value may be determined from other sources reasonably acceptable to the
Depositor.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage Loan
which, prior to such Due Date, was not the subject of a Principal Prepayment in
Full, did not become a Liquidated Mortgage Loan and was not purchased or
replaced.
Outstanding Principal Balance: As of the time of any determination, the
principal balance of a Mortgage Loan remaining to be paid by the Mortgagor, or,
in the case of an REO Property, the principal balance of the related Mortgage
Loan remaining to be paid by the Mortgagor at the time such property was
acquired by the Trust Fund less any Net Liquidation Proceeds with respect
thereto to the extent applied to principal.
Overcollateralization Amount: As of any date of determination, the excess
of (1) the Stated Principal Balance of the Mortgage Loans over (2) the
Certificate Principal Balance of the Certificates (other than the Class P
Certificates and the Class C Certificates).
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Margin: Any of the Class A-1 Pass-Through Margin, the Class
A-2 Pass-Through Margin, the Class A-3 Pass-Through Margin, the Class M-1
Pass-Through Margin, the Class M-2 Pass-Through Margin, the Class M-3
Pass-Through Margin, the Class M-4 Pass-Through Margin, the Class M-5
Pass-Through Margin, the Class M-6 Pass-Through Margin, the Class B-1
Pass-Through Margin, the Class B-2 Pass-Through Margin, the Class B-3
Pass-Through Margin or the Class R Pass-Through Margin.
Pass-Through Rate: With respect to any class of the LIBOR Certificates on
any Distribution Date, the lesser of (1) One-Month LIBOR plus the related
Pass-Through Margin for such class of Certificates, (2) the Available Funds Cap
and (3) the Maximum Rate Cap.
Percentage Interest: With respect to any Certificate (other than the Class
R and Class P Certificates), a fraction, expressed as a percentage, the
numerator of which is the Initial Certificate Principal Balance represented by
such Certificate and the denominator of which is the Initial Certificate
Principal Balance of the related Class. With respect to the Class R and Class P
Certificates, the Percentage Interest evidenced thereby shall be as specified on
the face thereof, or otherwise, be equal to 100%.
Periodic Rate Cap: With respect to each Mortgage Loan, the maximum
adjustment that can be made to the Mortgage Interest Rate on each Interest
Adjustment Date in accordance with its terms, regardless of changes in the
applicable Index.
Permitted Investments: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders (provided that such obligation
-45-
or security must be a "permitted investment" within the meaning of such term as
provided for in Section 860G(a)(5) of the Code):
(i) direct obligations of, and obligations the timely payment of which
are fully guaranteed by the United States of America or any agency or
instrumentality of the United States of America the obligations of which
are backed by the full faith and credit of the United States of America;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States of America or any state
thereof (including the Trustee or the Master Servicer or its Affiliates
acting in its commercial banking capacity) and subject to supervision and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or the short-term debt rating and/or the long-term
unsecured debt obligations of such depository institution or trust company
at the time of such investment or contractual commitment providing for such
investment have the Applicable Credit Rating or better from each Rating
Agency and (b) any other demand or time deposit or certificate of deposit
that is fully insured by the Federal Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of the United States of America,
the obligations of which are backed by the full faith and credit of the
United States of America, in either case entered into with a depository
institution or trust company (acting as principal) described in clause
(ii)(a) above where the Trustee holds the security therefor;
(iv) securities bearing interest or sold at a discount issued by any
corporation (including the Trustee, the Securities Administrator or the
Master Servicer or its Affiliates) incorporated under the laws of the
United States of America or any state thereof that have the Applicable
Credit Rating or better from each Rating Agency at the time of such
investment or contractual commitment providing for such investment;
provided, however, that securities issued by any particular corporation
will not be Permitted Investments to the extent that investments therein
will cause the then outstanding principal amount of securities issued by
such corporation and held as part of the Issuing Entity to exceed 10% of
the aggregate Outstanding Principal Balances of all the Mortgage Loans and
Permitted Investments held as part of the Issuing Entity;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
having the Applicable Credit Rating or better from each Rating Agency at
the time of such investment;
(vi) a Reinvestment Agreement issued by any bank, insurance company or
other corporation or entity;
(vii) any other demand, money market or time deposit, obligation,
security or investment as may be acceptable to either Rating Agency as
evidenced in writing by each Rating Agency to the Trustee, the Securities
Administrator or Master Servicer;
-46-
(viii) any money market or common trust fund having the Applicable
Credit Rating or better from each Rating Agency (if such fund is rated by
each such Rating Agency), including any such fund for which the Trustee,
Securities Administrator or Master Servicer or any affiliate of the
Trustee, Securities Administrator or Master Servicer acts as a manager or
an advisor; provided, however, that no instrument or security shall be a
Permitted Investment if such instrument or security evidences a right to
receive only interest payments with respect to the obligations underlying
such instrument or if such security provides for payment of both principal
and interest with a yield to maturity in excess of 120% of the yield to
maturity at par or if such instrument or security is purchased at a price
greater than par; and
(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except if S&P is a Rating Agency,
"AAAm" or "AAAM-G" by S&P) and restricted to obligations issued or
guaranteed by the United States of America or entities whose obligations
are backed by the full faith and credit of the United States of America and
repurchase agreements collateralized by such obligations.
Permitted Transferee: Any Person other than a Disqualified Organization or
an "electing large partnership" (as defined by Section 775 of the Code).
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Certificate: The Residual Certificate.
Pooling and Servicing Agreement: This Pooling and Servicing Agreement,
dated June 1, 2007, relating to the Mortgage Pass-Through Certificates, MANA
Series 2007-OAR3.
Posted Collateral: Collateral posted pursuant to and in accordance with the
terms and provisions of the Swap Agreement.
Preliminary Statement: The paragraphs in the preamble to this Agreement
that precede Article I.
Prepayment Charge: Any prepayment premium or fee payable by a Mortgagor in
connection with any Principal Prepayment on a Mortgage Loan pursuant to the
terms of the related Mortgage Note or Mortgage, as applicable.
Prepayment Charge Mortgage Loans: Any of the Mortgage Loans that are
subject to existing prepayment charges.
Prepayment Interest Shortfall: As to any Distribution Date and any Mortgage
Loan (other than a Mortgage Loan relating to an REO Property) that was the
subject of (a) a Principal Prepayment in Full during the related Prepayment
Period, an amount equal to the excess of one month's interest at the Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan over the
amount of interest (adjusted to the Net Mortgage Rate) paid by the Mortgagor for
-47-
such Prepayment Period to the date of such Principal Prepayment in Full or (b) a
Curtailment during the prior calendar month, an amount equal to one month's
interest at the Net Mortgage Rate on the amount of such Curtailment. The
obligations of the Master Servicer and the Servicers in respect of any
Prepayment Interest Shortfall are set forth in Section 6.05 and Section 13.23.
Prepayment Period: With respect to any Mortgage Loan and any Distribution
Date, with respect to prepayments and other payments received in connection
therewith, the calendar month preceding the month in which such Distribution
Date occurs (or, in the case of the first Distribution Date, beginning on the
Cut-off Date).
Primary Mortgage Insurance Policy: Any primary mortgage guaranty insurance
policy issued in connection with a Mortgage Loan which provides compensation to
a Mortgage Note holder in the event of default by the obligor under such
Mortgage Note or the related Security Instrument, if any or any replacement
policy therefor through the related Accrual Period for such Class relating to a
Distribution Date.
Principal Distribution Amount: with respect to each Distribution Date, the
sum of (1) the Principal Funds for such Distribution Date and (2) any Extra
Principal Distribution Amount for such Distribution Date.
Principal Funds: With respect to any Distribution Date and the Mortgage
Loans, the sum, without duplication, of (1) the principal due during the related
Due Period and received before the related Servicer Remittance Date or advanced
by the Servicers as an Advance on or before the related Servicer Remittance
Date, (2) Principal Prepayments in Full collected in the related Prepayment
Period, (3) the Stated Principal Balance of each Mortgage Loan that was
purchased by the Depositor or the applicable Servicer during the related
Prepayment Period or, in the case of a purchase in connection with an optional
termination, on the Business Day prior to such Distribution Date, (4) the
amount, if any, by which the aggregate unpaid principal balance of any
replacement Mortgage Loans is less than the aggregate unpaid principal balance
of any Mortgage Loans delivered by the Sponsor during the related Prepayment
Period in connection with a substitution of a Mortgage Loan, (5) all Liquidation
Proceeds applicable to the related Prepayment Period (to the extent such
Liquidation Proceeds related to principal), (6) all Subsequent Recoveries
received applicable to the related Prepayment Period and (7) all other
collections and recoveries in respect of principal applicable to the related
Prepayment Period and less (A) all non-recoverable Advances relating to
principal and all non-recoverable Servicing Advances reimbursed during the
applicable reimbursement period, (B) indemnification amounts and expenses
reimbursable to the Trustee, Securities Administrator, Master Servicer and the
Servicers hereunder and (C) the lesser of (i) the aggregate amount of items (2),
(3), (4) and (5) above collected during the related Prepayment Period and (ii)
the aggregate amount of Negative Amortization during the related Prepayment
Period.
Principal Prepayment: Any Principal Prepayment in Full or Curtailment or
other recovery of principal on a Mortgage Loan which is received in advance of
its scheduled Due Date to the extent that it is not accompanied by an amount as
to interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment, including Insurance
Proceeds and Repurchase Proceeds, but excluding the principal portion of Net
Liquidation Proceeds.
-48-
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire unpaid principal balance of the Mortgage Loan.
Prospectus Supplement: The Prospectus Supplement dated June 28, 2007,
relating to the public offering of the Offered Certificates.
PUD: A Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03 or 10.01, and as
confirmed by an Officers' Certificate from the Master Servicer to the Trustee,
an amount equal to the sum of (i) 100% of the Stated Principal Balance thereof
as of the date of purchase (or such other price as provided in Section 10.01),
(ii) accrued interest on such Stated Principal Balance at the applicable
Mortgage Interest Rate in effect from time to time from the Due Date as to which
interest was last covered by a payment by the Mortgagor or an advance by the
applicable Servicer or Master Servicer, which payment or advance had as of the
date of purchase been distributed to Certificateholders, through the end of the
calendar month in which the purchase is to be effected less any unreimbursed
Advances and any unpaid Servicing Fees payable to the purchaser of the Mortgage
Loan and (iii) any costs and damages incurred by the Issuing Entity in
connection with any violation by such Mortgage Loan or REO Property of any
predatory or abusive-lending law.
Qualified Servicer: Any servicer with a servicer rating by each of the
Rating Agencies equal to or better than the servicer rating of Wilshire at the
time of any such servicing transfer.
Rating Agencies: Xxxxx'x, and S&P.
Rating Agency Condition: As defined in the Swap Agreement.
Realized Loss: With respect to a Liquidated Mortgage Loan, the amount by
which the remaining unpaid principal balance of the Mortgage Loan exceeds the
amount of Net Liquidation Proceeds applied to the principal balance of the
related Mortgage Loan. To the extent the Master Servicer receives Subsequent
Recoveries with respect to any Mortgage Loan, the amount of the Realized Loss
with respect to that Mortgage Loan will be reduced to the extent such recoveries
are applied to reduce the Certificate Principal Balance of any Class of
Certificates on any Distribution Date.
Realized Loss Amount: With respect to any Distribution Date, the amount, if
any, by which the aggregate Certificate Principal Balance of the Certificates
after distributions of principal on such Distribution Date exceeds the aggregate
Stated Principal Balance of the Mortgage Loans as of such Distribution Date.
Record Date: With respect to each Distribution Date and each class of
Offered Certificates, the close of business on the last Business Day of the
month immediately preceding the month in which the related Distribution Date
occurs (or the Closing Date in the case of the first Distribution Date).
Regular Certificates: Any of the Class A-1, Class X-0, Xxxxx X-0, Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2
or Class B-3 Certificates.
-49-
Regulation AB: Subpart 22.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed Reg. 1,506-1,631 (January 7, 2005) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Reinvestment Agreements: One or more reinvestment agreements, acceptable to
each of the Rating Agencies, from a bank, insurance company or other corporation
or entity (including the Trustee).
Related Certificates: For each interest in the Upper Tier REMIC, the Class
of Certificates listed on the same row in the table entitled "Upper Tier REMIC"
in the Preliminary Statement.
Relevant Servicing Criteria: The Servicing Criteria applicable to the
various parties, as set forth on Exhibit K hereto. For clarification purposes,
multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Securities Administrator, the Trustee, the Custodian or a
Servicer, the term "Relevant Servicing Criteria" may refer to one or more
discrete functions specified in the Relevant Servicing Criteria applicable to
such parties.
Relief Act: The Servicemembers Civil Relief Act, as amended, or similar
state statute.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Monthly Payment
or portion thereof has been reduced or postponed due to the application of the
Relief Act.
Relief Act Shortfall: With respect to any Distribution Date and any
Mortgage Loan, any reduction in the amount of interest or principal collectible
on such Mortgage Loan for the most recently ended calendar month as a result of
the application of the Relief Act.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC as
described in the Preliminary Statement and Section 9.12.
REMIC 1: Not applicable.
REMIC 1 Interest: Not applicable.
REMIC 1 Regular Interest: Not applicable.
REMIC 1 Subordinate Balance Ratio: Not applicable.
REMIC 2: Not applicable.
REMIC 2 Interest: Not applicable.
REMIC 2 Regular Interest: Not applicable.
-50-
REMIC Opinion: An Opinion of Counsel to the effect that a contemplated
action will neither adversely affect the status as a REMIC of any REMIC created
hereunder nor subject any such REMIC to any tax under the REMIC Provisions.
REMIC Pass-Through Rate: In the case of a Class of the Senior Certificates,
Class M Certificates and Class B Certificates, the Upper Tier REMIC Net WAC Cap
for the Corresponding REMIC Regular Interest.
REMIC Provisions: The provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations, including proposed regulations and rulings, and administrative
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
REMIC Regular Interests: Each of the interests in the Upper Tier REMIC as
set forth in the Preliminary Statement other than the Residual Interest.
REMIC Swap Rate: For each Distribution Date (and the related Accrual
Period), a per annum rate equal to the Fixed Rate under the Swap Agreement for
such Distribution Date, as set forth in the Prospectus Supplement.
REO Property: A Mortgaged Property acquired by a Servicer or Master
Servicer on behalf of the Trust Fund through foreclosure or deed-in-lieu of
foreclosure, as described in Section 3.15 in connection with a defaulted
Mortgage Loan.
Reportable Event: As defined in Section 3.18(a).
Reporting Servicer: As defined in Section 3.18(h).
Repurchase Proceeds: The Repurchase Price in connection with any repurchase
of a Mortgage Loan by the Sponsor and any cash deposit in connection with the
substitution of a Mortgage Loan.
Request for Release: A request for release in the form attached hereto as
Exhibit D.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance
policy which is required to be maintained from time to time under this Agreement
with respect to such Mortgage Loan.
Required Percentage: With respect to a Distribution Date, the quotient of
(x) the excess of (1) the aggregate Stated Principal Balance of the Mortgage
Loans as of the prior Distribution Date, prior to giving effect to distributions
to be made on such Distribution Date over (2) the Certificate Principal Balance
of the most senior class of Certificates outstanding as of such Distribution
Date, prior to giving effect to distributions to be made on such Distribution
Date, and (y) the aggregate Stated Principal Balances of the Mortgage Loans as
of the prior Distribution Date, prior to giving effect to distributions to be
made on such Distribution Date. As used herein, the Certificate Principal
Balance of the most senior class of Certificates will equal the aggregate
Certificate Principal Balance of the Senior Certificates as of such date of
calculation.
-51-
Reserve Interest Rate: The rate per annum that the Securities Administrator
determines to be either (1) the arithmetic mean (rounded upwards if necessary to
the nearest whole multiple of 0.03125%) of the one-month United States dollar
lending rates which New York City banks selected by the Securities Administrator
are quoting on the relevant Interest Determination Date to the principal London
offices of leading banks in the London interbank market or (2) in the event that
the Securities Administrator can determine no such arithmetic mean, the lowest
one-month United States dollar lending rate which New York City banks selected
by the Securities Administrator are quoting on such Interest Determination Date
to leading European banks.
Residual Certificate: The Class R Certificate.
Residual Interest: An interest in the Upper Tier REMIC that is entitled to
all distributions of principal and interest on the Class R Certificate other
than (i) distributions in respect of the Class SWR Interest and the Class LTR
Interest and (ii) distributions on the Class R Certificate in respect of Excess
Interest.
Responsible Officer: Any officer assigned to the Corporate Trust Office (or
any successor thereto), including any Vice President, Assistant Vice President,
Trust Officer, any Assistant Secretary, any trust officer or any other officer
of the Trustee or Securities Administrator customarily performing functions
similar to those performed by any of the above designated officers and having
direct responsibility for the administration of this Agreement, and any other
officer of the Trustee or Securities Administrator to whom a matter arising
hereunder may be referred because of such officers familiarity with the subject
matter thereof.
Responsible Servicing Officer: Any officer of a Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans.
Reuters: Reuters Monitor Money Rates Service.
Reuter's Screen LIBO Page: The display designated as page "LIBO" on Reuters
(or such other page as may replace the LIBO page on that service for the purpose
of displaying London interbank offered rates of major banks).
Xxxxxxxx-Xxxxx Act: The Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
Xxxxxxxx-Xxxxx Certification: A written certification signed by an officer
of the Master Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act, and (ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided that if, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act is amended,
(b) the Rules referred to in clause (ii) are modified or superseded by any
subsequent statement, rule or regulation of the Commission or any statement of a
division thereof, or (c) any future releases, rules and regulations are
published by the Commission from time to time pursuant to the Xxxxxxxx-Xxxxx
Act, which in any such case affects the form or substance of the required
certification and results in the required certification being, in the reasonable
judgment of the Master Servicer, materially more onerous that then form of the
required certification as of the Closing Date, the Xxxxxxxx-Xxxxx Certification
shall be as
-52-
agreed to by the Master Servicer and the Depositor following a negotiation in
good faith to determine how to comply with any such new requirements.
S&P: Standard and Poor's, a division of The XxXxxx-Xxxx Companies, Inc. or
its successor in interest.
Scheduled Payment: With respect to any Mortgage Loan and any month, the
scheduled payment or payments of principal and interest due during such month on
such Mortgage Loan which either is payable by a Mortgagor in such month under
the related Mortgage Note or, in the case of REO Property, would otherwise have
been payable under the related Mortgage Note as a Minimum Payment.
Scheduled Principal: The principal portion of any Scheduled Payment.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo Bank, N.A., or any successor in
interest, or any successor securities administrator appointed as herein
provided.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
Security Instrument: A written instrument creating a valid first lien on a
Mortgaged Property securing a Mortgage Note, which may be any applicable form of
mortgage, deed of trust, deed to secure debt or security deed, including any
riders or addenda thereto.
Senior Certificate Principal Balance: As of any date of determination, the
sum of the Class A-1 Certificate Principal Balance, the Class A-2 Certificate
Principal Balance, the Class A-3 Certificate Principal Balance and the Class R
Certificate Principal Balance.
Senior Certificates: Any of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates and the Class R Certificates.
Senior Principal Distribution Amount: (1) With respect to any Distribution
Date prior to the related Stepdown Date or as to which a Stepdown Trigger Event
exists, 100% of the Principal Distribution Amount for such Distribution Date and
(2) with respect to any Distribution Date on or after the Stepdown Date and as
to which a Stepdown Trigger Event does not exist, the excess of (A) the
Certificate Principal Balance of the Senior Certificates after the allocation of
Deferred Interest, if any, for each Distribution Date and immediately prior to
such Distribution Date over (B) the lesser of (i) (a) for each Distribution Date
on or prior to June 2013, 78.75% of the aggregate Stated Principal Balance of
the Mortgage Loans as of such Distribution Date and (b) for each Distribution
Date after June 2013, 83.00% of the aggregate Stated Principal Balance of the
Mortgage Loans as of such Distribution Date and (ii) the excess of the aggregate
Stated Principal Balance of the Mortgage Loans as of such Distribution Date over
the Minimum Required Overcollateralization Amount; provided, however, that in no
event will the Senior Principal Distribution Amount with respect to any
Distribution Date exceed the aggregate Certificate Principal Balance of the
Senior Certificates.
-53-
Servicer: With respect to (i) each Mortgage Loan serviced by Wilshire as
specified on the Mortgage Loan Schedule, Wilshire and (ii) each Mortgage Loan
serviced by RFC as specified on the Mortgage Loan Schedule, RFC, and their
respective successors and assigns.
Servicer Event of Default: As defined in Section 15.01.
Servicer Remittance Date: With respect to (A) Wilshire, the later of (x)
two Business Days after the 15th day of the month in which such Distribution
Date occurs and (y) the 18th day (or if such 18th is not a Business Day, the
immediately preceding Business Day) of the month in which the related
Distribution occurs or (B) RFC, the 18th day of each month or, if such 18th day
is not a Business Day, on the immediately succeeding Business Day of the month
in which the related Distribution Date occurs.
Servicing Advances: All customary, reasonable and necessary "out of pocket"
costs and expenses incurred in the performance by a Servicer of its servicing
obligations hereunder, including, but not limited to, the cost of (1) the
preservation, inspection, restoration and protection of a Mortgaged Property,
including without limitation advances in respect of prior liens, real estate
taxes and assessments, (2) any collection, enforcement or judicial proceedings,
including without limitation foreclosures, collections and liquidations, (3) the
conservation, management, sale and liquidation of any REO Property, (4)
executing and recording instruments of satisfaction, deeds of reconveyance,
substitutions of trustees on deeds of trust or Assignments of Mortgage to the
extent not otherwise recovered from the related Mortgagors or payable under this
Agreement, (5) correcting errors of prior servicers; costs and expenses charged
to such Servicer by the Trustee; tax tracking; title research; flood
certifications; and lender paid mortgage insurance, (6) obtaining or correcting
any legal documentation required to be included in the Mortgage Files and
reasonably necessary for the Servicer to perform its obligations under this
Agreement and (7) compliance with the obligations under Sections 13.01 and
13.10.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing Fee: As to any Mortgage Loan and Distribution Date, an amount
equal to the product of (i) the Stated Principal Balance of such Mortgage Loan
as of the preceding Distribution Date and (ii) the applicable Servicing Fee
Rate. Such fee shall be payable monthly, computed on the basis of the same
principal amount and period respectively which any related interest payment on a
Mortgage Loan is computed. If the Index and/or Gross Margin are adjusted as
provided in the related Mortgage Note, the Servicing Fee shall be the rate per
annum in effect immediately prior to such adjustment.
Servicing Fee Rate: With respect to Wilshire, 0.375% per annum, and with
respect to RFC, 0.425% per annum.
Servicing Function Participant: Any Subservicer, Subcontractor or any other
Person engaged by a Servicer, the Custodian, the Master Servicer, the Paying
Agent, the Securities Administrator or the Trustee required by Regulation AB to
provide an Assessment of Compliance and an Accountant's Attestation.
-54-
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
names and specimen signatures appear on a list of servicing officers furnished
to the Trustee by the Master Servicer, as such list may be amended from time to
time.
Servicing Rights Owner: With respect to each Mortgage Loan serviced by
Wilshire as specified on the Mortgage Loan Schedule, MLML, or its transferee or
assignee, in its capacity as owner of the servicing rights.
Significance Estimate: With respect to any Distribution Date, and in
accordance with Item 1115 of Regulation AB, shall be an amount determined based
on the reasonable good-faith estimate by the Depositor or its affiliate (and
reported to the Securities Administrator) of the aggregate maximum probable
exposure of the outstanding Certificates to the Swap Agreement and the Corridor
Contract, as applicable.
Significance Percentage: With respect to any Distribution Date, and in
accordance with Item 1115 of Regulation AB, shall be a percentage equal to the
Significance Estimate divided by the aggregate outstanding Stated Principal
Balance of the Mortgage Loans, prior to the distribution of the Principal
Distribution Amount on such Distribution Date.
Sponsor: Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation, or
any successor in interest.
Startup Day: The Closing Date.
Stated Principal Balance: With respect to any Mortgage Loan and
Distribution Date, the unpaid principal balance of such Mortgage Loan as of the
Due Date in the related Due Period, as specified in the amortization schedule at
the time relating thereto (before any adjustment to such amortization schedule
by reason of any moratorium or similar waiver or grace period), after giving
effect to any previous partial prepayments and Net Liquidation Proceeds received
and to the payment of principal due on such Due Date and irrespective of any
delinquency in payment by the related Mortgagor and as increased by the amounts
of any Negative Amortization with respect to such Mortgage Loan after the
Cut-off Date through the Due Date in the related Due Period. With respect to any
Mortgage Loan and the Cut-off Date, the Cut-off Date Principal Balance thereof.
Stepdown Date: The earlier of: (A) the first Distribution Date on which the
aggregate Certificate Principal Balance of the Senior Certificates has been
reduced to zero and (B) the first Distribution Date on which the aggregate
Certificate Principal Balance of the Senior Certificates (after giving effect to
distributions of the Principal Funds amount for such Distribution Date) is less
than or equal to (i) 78.75% of the aggregate Stated Principal Balance of the
Mortgage Loans (if such Distribution Date is on or prior to June 2013) or (ii)
83.00% of the aggregate Stated Principal Balance of the Mortgage Loans (if such
Distribution Date is on or after June 2013); notwithstanding the foregoing, the
Stepdown Date calculated pursuant to clause (B) shall not occur prior to July
2010.
Stepdown Required Loss Percentage: For any Distribution Date, the
applicable percentage for such Distribution Date set forth in the following
table:
-55-
DISTRIBUTION DATE STEPDOWN REQUIRED
OCCURRING IN LOSS PERCENTAGE
------------------------ -----------------------------------------
July 2009 -- June 2010 0.15% with respect to July 2009, plus an
additional 1/12th of 0.25% for each month
thereafter
July 2010 -- June 2011 0.40% with respect to July 2010, plus an
additional 1/12th of 0.30% for each month
thereafter
July 2011 -- June 2012 0.70% with respect to July 2011, plus an
additional 1/12th of 0.25% for each month
thereafter
July 2012 -- June 2013 0.95% with respect to July 2012, plus an
additional 1/12th of 0.40% for each month
thereafter
July 2013 -- June 2014 1.35% with respect to July 2013, plus an
additional 1/12th of 0.10% for each month
thereafter
July 2014 and thereafter 1.45%
Stepdown Trigger Event: The situation that exists with respect to any
Distribution Date on or after the Stepdown Date, if (a) the quotient (measured
on a rolling three-month basis) of (1) the aggregate Stated Principal Balance of
all Mortgage Loans 60 or more days delinquent (including Mortgage Loans in
foreclosure, REO properties and Mortgage Loans with respect to which the
applicable mortgagor is in bankruptcy) and (2) the Stated Principal Balance of
all of the Mortgage Loans as of the preceding Servicer Remittance Date, equals
or exceeds the product of (i) (a) on or prior to the Distribution Date in June
2013, 32.90% or (b) after the Distribution Date in June 2013, 40.00% and (ii)
the Required Percentage or (b) the quotient (expressed as a percentage) of (1)
the aggregate Realized Losses incurred from the Cut-off Date through the last
day of the calendar month preceding such Distribution Date and (2) the aggregate
principal balance of the Mortgage Loans as of the Cut-off Date exceeds the
Stepdown Required Loss Percentage. For purposes hereof, for any Distribution
Date, the calculation of "rolling three-month basis" requires first, the
calculation of the quotient described in (a) of this definition for each of the
three (3) Due Periods immediately prior to such Distribution Date, second, the
addition of such 3 quotients and third, dividing the sum of such 3 quotients by
3.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect to
Mortgage Loans under the direction or authority of any Servicer (or a
Subservicer of any Servicer), the Master Servicer, the Custodian or the
Securities Administrator.
Subsequent Recoveries: Any amount recovered by a Servicer or the Master
Servicer (net of reimbursable expenses) with respect to a Liquidated Mortgage
Loan with respect to which a Realized Loss was incurred after the liquidation or
disposition of such Mortgage Loan.
-56-
Subservicer: Any Person that services Mortgage Loans on behalf of a
Servicer, and is responsible for the performance (whether directly or through
subservicers or Subcontractors) of servicing functions required to be performed
under this Agreement or any subservicing agreement that are identified in Item
1122(d) of Regulation AB.
Subservicing Agreement: As defined in Section 13.02(a).
Substitute Mortgage Loan: With respect to any Mortgage Loan, which is
tendered to the Trustee pursuant to this Agreement, the related Mortgage Loan
Purchase Agreement or Section 2.04 of this Agreement, as applicable, in each
case, (i) which has an Outstanding Principal Balance not greater nor materially
less than the Mortgage Loan for which it is to be substituted; (ii) which has a
Mortgage Interest Rate and Net Rate not less than, and not materially greater
than, such Mortgage Loan; (iii) which has a maturity date not materially earlier
or later than such Mortgage Loan and not later than the latest maturity date of
any Mortgage Loan; (iv) which is of the same property type and occupancy type as
such Mortgage Loan; (v) which has a Loan-to-Value Ratio not greater than the
Loan-to-Value Ratio of such Mortgage Loan; (vi) which is current in payment of
principal and interest as of the date of substitution; (vii) as to which the
payment terms do not vary in any material respect from the payment terms of the
Mortgage Loan for which it is to be substituted and (viii) which has a Gross
Margin, Periodic Rate Cap and Maximum Lifetime Mortgage Rate no less than those
of such Mortgage Loan, has the same Index and interval between Interest
Adjustment Dates as such Mortgage Loan, and a Minimum Lifetime Mortgage Rate no
lower than that of such Mortgage Loan.
Subordinate Certificates: Any of the Class M and the Class B Certificates.
Supplemental Interest Trust: The separate trust, established pursuant to
Section 6.01(m) of this Agreement and held by the Securities Administrator for
the benefit of the holders of the Certificates as a segregated subtrust of the
Trust Fund, (i) in which the Swap Agreement will be held, any Swap Termination
Payments or Net Swap Payments received from the Swap Counterparty will be
deposited as set forth in Section 6.01 hereof and (ii) out of which certain
distributions to the Certificateholders will be made and any Swap Termination
Payments or Net Swap Payments owed to the Swap Counterparty will be paid.
Supplemental Interest Trust Trustee: Xxxxx Fargo Bank, N.A., a national
banking association, not in its individual capacity, but solely in its capacity
as trustee of the Supplemental Interest Trust for the benefit of the
Certificateholders under this Agreement, and any successor thereto, and any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
Swap Account: The separate Eligible Account created and maintained by the
Supplemental Interest Trust Trustee pursuant to Section 6.01(m) in the name of
the Supplemental Interest Trust Trustee for the benefit of the Supplemental
Interest Trust and designated "Xxxxx Fargo Bank, N.A., as supplemental interest
trust trustee, in trust for registered holders of Xxxxxxx Xxxxx Alternative Note
Asset Trust, Series 2007-OAR3." Funds in the Swap Account shall be held in trust
for the Supplemental Interest Trust for the uses and purposes set forth in this
Agreement.
-57-
Swap Agreement: The confirmation and agreement, including the schedule
thereto and the related credit support annex, between the Swap Counterparty and
the trustee of the Supplemental Interest Trust for the benefit of the
Certificateholders (attached as Exhibit R hereto) or any other swap agreement
(including any related schedules) held by the Supplemental Interest Trust
pursuant to Section 6.01(m) hereof.
Swap Agreement Notional Balance: As defined in the Swap Agreement.
Swap Counterparty: Xxxxxx Xxxxxxx Capital Services Inc., or any successor
counterparty who meets the requirements set forth in the Swap Agreement.
Swap LIBOR: With respect to any Distribution Date (and the related Accrual
Period) the product of (i) the Floating Rate Option (as defined in the Swap
Agreement for the related Swap Payment Date), (ii) two and (iii) the quotient of
(a) the actual number of days in the Accrual Period for the Lower Tier REMIC
Interests divided by (b) 30.
Swap Payment Date: For so long as the Swap Agreement is in effect or
amounts remain unpaid thereunder, the Business Day (as defined in the Swap
Agreement) immediately preceding each Distribution Date.
Swap Posted Collateral Account: The segregated Eligible Account created and
maintained by the Supplemental Interest Trust Trustee pursuant to Section
6.01(m) in the name of the Supplemental Interest Trust Trustee for the benefit
of the Supplemental Interest Trust and designated "Xxxxx Fargo Bank, N.A., as
supplemental interest trust trustee, in trust for registered holders of Xxxxxxx
Xxxxx Alternative Note Asset Trust, Series 2007-OAR3." Funds in the Swap Posted
Collateral Account shall be held in trust for the Supplemental Interest Trust
for the uses and purposes set forth in the Swap Agreement.
SWAP REMIC: As described in the Preliminary Statement.
SWAP REMIC Interests: Each of the interests in the SWAP REMIC as set forth
in the Preliminary Statement.
SWAP REMIC Regular Interests: Each of the SWAP REMIC Interests other than
the Class SWR Interest.
Swap Termination Payment: Any payment payable by the Supplemental Interest
Trust or the Swap Counterparty upon termination of the Swap Agreement determined
in accordance with the Swap Agreement.
Tax Matters Person: The Securities Administrator or any successor thereto
or assignee thereof shall serve as tax administrator hereunder and as agent for
the Tax Matters Person. The Holder of the Residual Certificates shall be the Tax
Matters Person for the related REMIC, as more particularly set forth in Section
9.12 hereof.
Transfer: Any direct or indirect transfer or sale of any Ownership Interest
in a certificate.
Transferor Representation Letter: As defined in Section 5.02(b).
-58-
Trust Fund: The corpus of the Issuing Entity created pursuant to Article II
of this Agreement.
Trustee: HSBC Bank USA, National Association, or its successor in interest,
or any successor trustee appointed as herein provided.
Uncertificated Class C Interest: An uncertificated REMIC Regular Interest
having the characteristics described in the Preliminary Statement.
Uninsured Cause: Any cause of damage to a Mortgaged Property or related REO
Property such that the complete restoration of such Mortgaged Property or
related REO Property is not fully reimbursable by the hazard insurance policies
required to be maintained pursuant to this Agreement, without regard to whether
or not such policy is maintained.
United States Person: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any state thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in regulations),
provided that, for purposes solely of the Class R Certificate, no partnership or
other entity treated as a partnership for United States federal income tax
purposes shall be treated as a United States Person unless all persons that own
an interest in such partnership either directly or through any entity that is
not a corporation for United States federal income tax purposes are United
States Persons, or an estate whose income is subject to United States federal
income tax regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more such United States Persons have the authority to control
all substantial decisions of the trust. To the extent prescribed in regulations
by the Secretary of the Treasury, which have not yet been issued, a trust which
was in existence on August 20, 1996 (other than a trust treated as owned by the
grantor under subpart E of part I of subchapter J of chapter 1 of the Code), and
which was treated as a United States person on August 20, 1996 may elect to
continue to be treated as a United States person notwithstanding the previous
sentence.
Unpaid Realized Loss Amount: With respect to any class of the Certificates
and as to any Distribution Date, the excess of (1) Applied Realized Loss Amounts
with respect to such class over (2) the sum of (x) all distributions in
reduction of the Unpaid Applied Realized Loss Amounts on all previous
Distribution Dates and (y) all increases in the Certificate Principal Balance of
such class pursuant to the last sentence of the definition of "Certificate
Principal Balance." Any amounts distributed to a class of Certificates in
respect of any Unpaid Realized Loss Amount will not be applied to reduce the
Certificate Principal Balance of such class.
Upper Collar: With respect to each Distribution Date with respect to which
payments are received on the Corridor Contract, a rate equal to the lesser of
One-Month LIBOR and 10.198% per annum.
Upper Tier REMIC: As described in the Preliminary Statement and Section
9.12.
Upper Tier REMIC Net WAC Cap: For any Distribution Date, the Net Rate.
-59-
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. The Voting Rights allocated among Holders
of such Certificates outstanding shall be the fraction, expressed as a
percentage, the numerator of which is the aggregate Certificate Principal
Balance of all the Certificates of such Class then outstanding and the
denominator of which is the aggregate Certificate Principal Balance of all the
Certificates then outstanding (other than the Class R Certificate). 99.00% of
all Voting Rights will be allocated among all holders of the Certificates (other
than the Class R Certificate) in proportion to their then outstanding
Certificate Principal Balances, and 1.00% of the Voting Rights shall be
allocated to the Class R Certificate; provided, however, that any Certificate
registered in the name of the Master Servicer, the Depositor or the Securities
Administrator or any of their respective affiliates shall not be included in the
calculation of Voting Rights. The Class P Certificates shall have no voting
rights.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., or any successor thereto.
WHFIT: A"Widely Held Fixed Investment Trust" as that term is defined in
Treasury Regulations section 1.671-5(b)(22) or successor provisions.
WHFIT Regulations: Treasury Regulations section 1.671-5, as amended.
Wilshire: Wilshire Credit Corporation.
Section 1.02 Accounting.
Unless otherwise specified herein, for the purpose of any definition or
calculation, whenever amounts are required to be netted, subtracted or added or
any distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication of
such functions.
ARTICLE II
CONVEYANCE OF MORTGAGE
LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans to Trustee.
(a) The Depositor concurrently with the execution and delivery of this
Agreement, sells, transfers and assigns to the Issuing Entity without recourse
all its right, title and interest in and to (i) the Mortgage Loans identified in
the Mortgage Loan Schedule, including all interest and principal due with
respect to the Mortgage Loans after the Cut-off Date, but excluding any payments
of principal and interest due on or prior to the Cut-off Date; (ii) such assets
as shall from time to time be credited or are required by the terms of this
Agreement or the Applicable Servicing Agreements to be credited to the Master
Servicer Collection Account, (iii) such assets relating to the Mortgage Loans as
from time to time may be held by the Servicers in Collection Accounts, the
Master Servicer in the Master Servicer Collection Account and the Securities
Administrator in the Distribution Account for the benefit of the Trustee on
behalf of the Certificateholders, (iv) any REO Property, (v) the Required
Insurance Policies and any amounts paid or payable by the insurer under any
Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the
Mortgage Loan Purchase Agreement to the extent provided in Section 2.03(a),
(vii) the Corridor Contract and Corridor Contract Account, (viii) the Swap
Agreement
-60-
and Swap Account, (ix) the Final Maturity Reserve Account and (x) any proceeds
of the foregoing. Although it is the intent of the parties to this Agreement
that the conveyance of the Depositor's right, title and interest in and to the
Mortgage Loans and other assets in the Trust Fund pursuant to this Agreement
shall constitute a purchase and sale and not a loan, in the event that such
conveyance is deemed to be a loan, it is the intent of the parties to this
Agreement that the Depositor shall be deemed to have granted to the Trustee a
first priority perfected security interest in all of the Depositor's right,
title and interest in, to and under the Mortgage Loans and other assets in the
Trust Fund, and that this Agreement shall constitute a security agreement under
applicable law.
(b) In connection with the above transfer and assignment, the Depositor
hereby deposits with the Trustee or the Custodian, as its agent, the following
documents or instruments
(I) with respect to each Mortgage Loan, other than a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-OAR3, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-OAR3.
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
-61-
and (II) with respect to each Mortgage Loan that is a Cooperative Loan:
(x) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-OAR3, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(xi) the original duly executed assignment of Security Agreement to
the Trustee;
(xii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(xiii) the acknowledgment copy of the original executed Form UCC-3
with respect to the Security Agreement, indicating the Trustee as the
assignee of the secured party;
(xiv) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
(xv) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(xvi) a copy of the recognition agreement;
(xvii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(xviii) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan;
provided, however, that in lieu of the foregoing, the Depositor may deliver the
following documents, under the circumstances set forth below: (w) the Depositor
may deliver a Mortgage Note pursuant to (a)(i) and (b)(i) endorsed in blank,
provided that the endorsement is completed within 60 days of the Closing Date;
(x) in lieu of the original Mortgage, assignments to the Trustee or its
Custodian, as applicable, or intervening assignments thereof which have been
delivered, are being delivered or will, upon receipt of recording information
relating to the Mortgage required to be included thereon, be delivered to
recording offices for recording and have not been returned to the Depositor in
time to permit their delivery as specified above, the Depositor may deliver a
true copy thereof with a certification by the Depositor on the face of such
copy, substantially as follows: "Certified to be a true and correct copy of the
original, which has been transmitted for recording"; and (y) in lieu of the
Mortgage, assignment to the Trustee or intervening assignments thereof, if the
applicable jurisdiction retains the originals of such
-62-
documents (as evidenced by a certification from the Depositor or the Master
Servicer, to such effect) the Depositor may deliver photocopies of such
documents containing an original certification by the judicial or other
governmental authority of the jurisdiction where such documents were recorded;
and provided, further, however, that in the case of Mortgage Loans which have
been prepaid in full after the Cut-off Date and prior to the Closing Date, the
Depositor, in lieu of delivering the above documents, may deliver to the Trustee
or its Custodian, as applicable, a certification to such effect and shall
deposit all amounts paid in respect of such Mortgage Loans in the Distribution
Account on the Closing Date. The Depositor shall deliver such original documents
(including any original documents as to which certified copies had previously
been delivered) to the Trustee or its Custodian, as applicable, promptly after
they are received. As of the date hereof, recordation of the assignment of the
Mortgage Loans to the Trustee or the Custodian, as applicable, is not required
in any state by either Rating Agency to obtain the initial rating on the
Certificates (upon which statement the Master Servicer, the Trustee and the
Custodian may each conclusively rely).
If any original Mortgage Note referred to in Section 2.01(b)(I)(i) or
2.01(b)(II)(i) above cannot be located, the obligations of the Depositor to
deliver such documents shall be deemed to be satisfied upon delivery to the
Trustee or its Custodian, as applicable, of a photocopy of such Mortgage Note,
if available, with a lost note affidavit. If any of the original Mortgage Notes
for which a lost note affidavit was delivered to the Trustee or its Custodian,
as applicable, is subsequently located, such original Mortgage Note shall be
delivered to the Trustee or its Custodian, as applicable, within three Business
Days.
(c) The parties hereto agree that it is not intended that any mortgage loan
be included in the Trust Fund that is, without limitation, a "High Cost Loan" as
defined by the Home Ownership and Equity Protection Act of 1994 or any other
applicable anti-predatory lending laws, including but not limited to (i) a
"High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a "High-Cost Home Loan" as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a "High Cost Home
Mortgage Loan" as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) a "High-Cost Home Loan" as defined by the
Indiana High Cost Home Loan Law effective January 1, 2005.
(d) Notwithstanding anything to the contrary contained herein, the parties
hereto acknowledge that the functions of the Trustee with respect to the
custody, acceptance, inspection and release of Mortgage Files, including but not
limited to certain insurance policies and documents contemplated by Section 3.12
of this Agreement, and preparation and delivery of the certifications shall be
performed by the Custodian(s) pursuant to the terms and conditions of the
Custodial Agreement(s).
Section 2.02 Acceptance of Mortgage Loans by Trustee.
(a) The Trustee acknowledges the sale, transfer and assignment of the Trust
Fund to it by the Depositor and its receipt thereof, subject to further review
and the exceptions which may be noted pursuant to the procedures described
below, and declares that it, or the Custodian on its behalf, holds the documents
(or certified copies thereof) delivered to it pursuant to Section 2.01,
including a Corridor Contract (the form of which are attached hereto as Exhibit
N), and declares that it will continue to hold those documents and any
amendments, replacements or
-63-
supplements thereto and all other assets of the Trust Fund delivered to it as
Trustee in trust for the use and benefit of all present and future Holders of
the Certificates. On or before the Closing Date (or, with respect to any
Substitute Mortgage Loan, within five Business Days after the receipt by the
Trustee or Custodian thereof), the Trustee agrees, for the benefit of the
Certificateholders and any NIMs Insurer, to review or cause to be reviewed by
the Custodian on its behalf (under the Custodial Agreement), each Mortgage File
delivered to it and to execute and deliver, or cause to be executed and
delivered, to the Depositor, the Trustee (if delivered by the Custodian) and any
NIMs Insurer on the Closing Date an Initial Certification. In conducting such
review, the Trustee or Custodian will certify as to each Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in the exception report annexed thereto as
not being covered by such certification), (i) all documents constituting part of
such Mortgage File (other than such documents described in Section
2.01(b)(I)(iii)) required to be delivered to it pursuant to this Agreement are
in its possession, provided that with respect to the documents described in
Section 2.01(b)(I)(v), (vi), (viii) and (ix) and 2.01(b)(II)(viii) and (ix) to
the extent the Trustee or the Custodian on its behalf has actual knowledge that
such documents exist, (ii) such documents have been reviewed by it and are not
torn, mutilated, defaced or otherwise altered (except if initialed by the
obligor) and appear to relate on their face to such Mortgage Loan, (iii) based
on its examination and only as to the foregoing, the information set forth in
the Mortgage Loan Schedule corresponding to the loan number for the Mortgage
Loan, the Mortgagor's name, including the street address but excluding the zip
code, the Mortgage Interest Rate and the original principal balance of the
Mortgage Loan accurately reflects information set forth in the Mortgage File and
(iv) with respect to Mortgage Loans with a Mortgage Interest Rate subject to
adjustment, the Gross Margin, the lifetime cap and the periodic cap for such
Mortgage Loan. In performing any such review, the Trustee, or the Custodian, as
its agent, may conclusively rely on the purported due execution and genuineness
of any such document and on the purported genuineness of any signature thereon.
Notwithstanding anything to the contrary in this Agreement, it is herein
acknowledged that, in conducting such review, the Trustee or the Custodian on
its behalf is under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine whether they
are genuine, enforceable, or appropriate for the represented purpose or whether
they have actually been recorded or that they are other than what they purport
to be on their face, or to determine whether any Person executing any documents
is authorized to do so or whether any signature is genuine.
If the Trustee or the Custodian, as its agent, finds any document
constituting part of the Mortgage File not to have been executed or received, or
to be unrelated to the Mortgage Loans identified in Exhibit B or to appear to be
defective on its face, the Trustee or the Custodian, as its agent, shall
promptly notify the Sponsor. In accordance with the Mortgage Loan Purchase
Agreement, the Sponsor shall correct or cure any such defect within ninety (90)
days from the date of notice from the Trustee or the Custodian, as its agent, of
the defect and if the Sponsor fails to correct or cure the defect within such
period, and such defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Trustee, shall enforce the
Sponsor's obligation pursuant to the Mortgage Loan Purchase Agreement, within 90
days from the Trustee's or the Custodian's notification, to purchase such
Mortgage Loan at the Purchase Price; provided that, if such defect would cause
the Mortgage Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure or repurchase must occur within 90 days
from the date such breach was discovered; provided, however, that if
-64-
such defect relates solely to the inability of the Sponsor to deliver the
original Security Instrument or intervening assignments thereof, or a certified
copy because the originals of such documents, or a certified copy have not been
returned by the applicable jurisdiction, the Sponsor shall not be required to
purchase such Mortgage Loan if the Sponsor delivers such original documents or
certified copy promptly upon receipt, but in no event later than 360 days after
the Closing Date. The foregoing repurchase obligation shall not apply in the
event that the Sponsor cannot deliver such original or copy of any document
submitted for recording to the appropriate recording office in the applicable
jurisdiction because such document has not been returned by such office;
provided that the Sponsor shall instead deliver a recording receipt of such
recording office or, if such receipt is not available, a certificate confirming
that such documents have been accepted for recording, and delivery to the
Trustee or the Custodian, as its agent, shall be effected by the Sponsor within
thirty days of its receipt of the original recorded document.
(b) No later than 180 days after the Closing Date, the Trustee or the
Custodian, as its agent, will review, for the benefit of the Certificateholders
and any NIMs Insurer, the Mortgage Files delivered to it and will execute and
deliver or cause to be executed and delivered to the Depositor, the Trustee (if
delivered by the Custodian) and any NIMs Insurer a Final Certification. In
conducting such review, the Trustee or the Custodian, as its agent, will certify
as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in the
exception report annexed thereto as not being covered by such certification),
that (i) all documents constituting part of such Mortgage File (other than such
documents described in Section 2.01(b)(I)(v) and (ix)) required to be delivered
to it pursuant to this Agreement are in its possession, provided that with
respect to the documents described in Section 2.01(b)(I)(v), (vi), (viii) and
(ix) and 2.01(b)(II)(viii) and (ix) to the extent the Trustee or the Custodian
on its behalf has actual knowledge that such documents exist, (ii) such
documents have been reviewed by it and are not torn, mutilated, defaced or
otherwise altered (except if initialed by the obligor) and appear regular on
their face and relate to such Mortgage Loan, (iii) based on its examination and
only as to the foregoing, the information set forth in the Mortgage Loan
Schedule corresponding to the loan number for the Mortgage Loan, the Mortgagor's
name, including the street address but excluding the zip code, the Mortgage
Interest Rate and the original principal balance of the Mortgage Loan accurately
reflects information set forth in the Mortgage File. In performing any such
review, the Trustee, or the Custodian, as its agent, may conclusively rely on
the purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. Notwithstanding anything to the
contrary in this Agreement, it is herein acknowledged that, in conducting such
review, the Trustee or the Custodian on its behalf is under no duty or
obligation (i) to inspect, review or examine any such documents, instruments,
certificates or other papers to determine whether they are genuine, enforceable,
or appropriate for the represented purpose or whether they have actually been
recorded or that they are other than what they purport to be on their face, or
to determine whether any Person executing any documents is authorized to do so
or whether any signature is genuine. If the Trustee or the Custodian, as its
agent, finds any document constituting part of the Mortgage File not to have
been executed or received, or to be unrelated to the Mortgage Loans identified
in Exhibit B or to appear to be defective on its face, the Trustee or the
Custodian, as its agent, shall promptly notify the Sponsor and any NIMs Insurer.
In accordance with the Mortgage Loan Purchase Agreement, the Sponsor shall
correct or cure any such defect within 90 days from the date of notice from the
Trustee or the Custodian of the defect and if the Sponsor is unable to cure such
defect within such period, and if such
-65-
defect materially and adversely affects the interests of the Certificateholders
in the related Mortgage Loan, the Trustee shall enforce the Sponsor's obligation
under the Mortgage Loan Purchase Agreement to purchase such Mortgage Loan at the
Purchase Price, provided, however, that if such defect relates solely to the
inability of the Sponsor to deliver the original Security Instrument or
intervening assignments thereof, or a certified copy, because the originals of
such documents, or a certified copy, have not been returned by the applicable
jurisdiction, the Sponsor shall not be required to purchase such Mortgage Loan,
if the Sponsor delivers such original documents or certified copy promptly upon
receipt, but in no event later than 360 days after the Closing Date.
(c) In the event that a Mortgage Loan is purchased by the Sponsor in
accordance with Sections 2.02(a) or (b) above, the Sponsor shall remit to the
Master Servicer the Purchase Price for deposit in the Master Servicer Collection
Account and the Sponsor shall provide to the Trustee written notification
detailing the components of the Purchase Price. Upon deposit of the Purchase
Price in the Master Servicer Collection Account, the Depositor shall give
written notice thereof to the Trustee and the Custodian and the Trustee or the
Custodian, as its agent (upon receipt of a Request for Release in the form of
Exhibit D attached hereto with respect to such Mortgage Loan), shall release to
the Sponsor the related Mortgage File and the Trustee shall execute and deliver
all instruments of transfer or assignment, without recourse, furnished to it by
the Sponsor as are necessary to vest in the Sponsor title to and rights under
the Mortgage Loan. Such purchase shall be deemed to have occurred on the date on
which the Purchase Price in available funds is received by the Master Servicer.
The Depositor or Master Servicer shall amend the Mortgage Loan Schedule, to
reflect such repurchase and shall promptly notify the Rating Agencies, and any
NIMs Insurer and the Master Servicer of such amendment. The obligation of the
Sponsor to repurchase any Mortgage Loan as to which such a defect in a
constituent document exists shall be the sole remedy respecting such defect
available to the Certificateholders, and any NIMs Insurer or to the Trustee on
their behalf.
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement.
(a) The Depositor hereby assigns to the Trustee, on behalf of the
Certificateholders and any NIMs Insurer, all of its right, title and interest in
the Mortgage Loan Purchase Agreement, including but not limited to Depositor's
rights pursuant to this Agreement (noting that the Sponsor has retained the
right in the event of breach of the representations, warranties and covenants,
if any, with respect to the related Mortgage Loans of the applicable Servicer
under this Agreement to enforce the provisions thereof and to seek all or any
available remedies). The obligations of the Sponsor to substitute or repurchase,
as applicable, a Mortgage Loan shall be the Trustee's and the
Certificateholders' sole remedy for any breach thereof. At the request of the
Trustee, the Depositor shall take such actions as may be necessary to enforce
the above right, title and interest on behalf of the Trustee and the
Certificateholders or shall execute such further documents as the Trustee may
reasonably require in order to enable the Trustee to carry out such enforcement.
With respect to the representations and warranties described in the Mortgage
Loan Purchase Agreement that are made to the best of the Sponsor's knowledge, if
it is discovered by any of the Depositor, the Sponsor, the Master Servicer, a
Servicer, the Securities Administrator or the Trustee that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan, then notwithstanding
the Sponsor's lack of knowledge with respect to the substance of such
-66-
representation and warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty.
(b) If the Depositor, the Master Servicer, Securities Administrator, any
NIMs Insurer or the Trustee discovers a breach of any of the representations and
warranties set forth in the Mortgage Loan Purchase Agreement, which breach
materially and adversely affects the value of the interests of
Certificateholders, any NIMs Insurer or the Trustee in the related Mortgage
Loan, the party discovering the breach shall give prompt written notice of the
breach to the other parties. The Sponsor, within 90 days of its discovery or
receipt of notice that such breach has occurred (whichever occurs earlier),
shall cure the breach in all material respects or, subject to the Mortgage Loan
Purchase Agreement or Section 2.04 of this Agreement, as applicable, shall
purchase the Mortgage Loan or any property acquired with respect thereto from
the Trustee; provided, however, that if there is a breach of any representation
set forth in the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, and the Mortgage Loan or the related property acquired
with respect thereto has been sold, then the Sponsor shall pay, in lieu of the
Purchase Price, any excess of the Purchase Price over the Net Liquidation
Proceeds received upon such sale. (If the Net Liquidation Proceeds exceed the
Purchase Price, any excess shall be paid to the Sponsor to the extent not
required by law to be paid to the borrower.) Any such purchase by the Sponsor
shall be made by providing an amount equal to the Purchase Price to the Master
Servicer for deposit in the Master Servicer Collection Account and written
notification detailing the components of such Purchase Price. The Depositor
shall notify the Trustee in writing of the deposit of the Purchase Price and
submit to the Trustee or the Custodian, as its agent, a Request for Release, and
the Trustee shall release, or the Trustee shall cause the Custodian to release,
to the Sponsor the related Mortgage File and the Trustee shall execute and
deliver all instruments of transfer or assignment furnished to it by the
Sponsor, without recourse, as are necessary to vest in the Sponsor title to and
rights under the Mortgage Loan or any property acquired with respect thereto.
Such purchase shall be deemed to have occurred on the date on which the Purchase
Price in available funds is received by the Master Servicer. The Depositor or
the Master Servicer shall amend the Mortgage Loan Schedule to reflect such
repurchase and shall promptly notify the Master Servicer and the Rating Agencies
of such amendment. Enforcement of the obligation of the Sponsor to purchase (or
substitute a Substitute Mortgage Loan for) any Mortgage Loan or any property
acquired with respect thereto (or pay the Purchase Price as set forth in the
above proviso) as to which a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to the
Certificateholders, any NIMs Insurer or the Trustee on their behalf.
Section 2.04 Substitution of Mortgage Loans. Notwithstanding anything to
the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant
to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this
Agreement, the Sponsor may, no later than the date by which such purchase by the
Sponsor would otherwise be required, tender to the Trustee a Substitute Mortgage
Loan accompanied by a certificate of an authorized officer of the Sponsor that
such Substitute Mortgage Loan conforms to the requirements set forth in the
definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement
or this Agreement, as applicable; provided, however, that substitution pursuant
to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, in lieu of purchase shall not be permitted after the termination of
the two-year period beginning on the Startup Day; provided, further, that if the
breach would cause the Mortgage Loan to be other than a "qualified
-67-
mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or
substitution must occur within 90 days from the date the breach was discovered.
The Trustee or the Custodian, as its agent, shall examine the Mortgage File for
any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the
Trustee or the Custodian, as its agent, shall notify the Sponsor, in writing,
within five Business Days after receipt, whether or not the documents relating
to the Substitute Mortgage Loan satisfy the requirements of the fourth sentence
of Section 2.02(a). Within two Business Days after such notification, the
Sponsor shall provide to the Securities Administrator for deposit in the
Distribution Account the amount, if any, by which the Outstanding Principal
Balance as of the next preceding Due Date of the Mortgage Loan for which
substitution is being made, after giving effect to Scheduled Principal due on
such date, exceeds the Outstanding Principal Balance as of such date of the
Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such
date, which amount shall be treated for the purposes of this Agreement as if it
were the payment by the Sponsor of the Purchase Price for the purchase of a
Mortgage Loan by the Sponsor. After such notification to the Sponsor and, if any
such excess exists, upon written notification of the receipt of such deposit,
the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be
deemed to be a Mortgage Loan hereunder. In the event of such a substitution,
accrued interest on the Substitute Mortgage Loan for the month in which the
substitution occurs and any Principal Prepayments made thereon during such month
shall be the property of the Issuing Entity and accrued interest for such month
on the Mortgage Loan for which the substitution is made and any Principal
Prepayments made thereon during such month shall be the property of the Sponsor.
The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the
month of substitution shall be the property of the Sponsor and the Scheduled
Principal on the Mortgage Loan for which the substitution is made due on such
Due Date shall be the property of the Issuing Entity. Upon acceptance of the
Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request
for Release for such Mortgage Loan), the Trustee shall release to the Sponsor
the related Mortgage File related to any Mortgage Loan released pursuant to the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, and shall execute and deliver all instruments of transfer or
assignment, without recourse, in form as provided to it as are necessary to vest
in the Sponsor title to and rights under any Mortgage Loan released pursuant to
the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable. The Sponsor shall deliver the documents related to the Substitute
Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase
Agreement or Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with
the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing
Date for purposes of the time periods set forth in those Sections. The
representations and warranties set forth in the Mortgage Loan Purchase Agreement
shall be deemed to have been made by the Sponsor with respect to each Substitute
Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee.
The Master Servicer shall amend the Mortgage Loan Schedule to reflect such
substitution and shall provide a copy of such amended Mortgage Loan Schedule to
the Trustee, any NIMs Insurer and the Rating Agencies.
Notwithstanding any other provision of this Agreement, the right to
substitute Mortgage Loans pursuant to this Article II shall be subject to the
additional limitations that no substitution of a Mortgage Loan shall be made
unless the Securities Administrator, any NIMs Insurer and the Trustee shall have
received an Opinion of Counsel (at the expense of the party seeking to make the
substitution) that, under current law, such substitution will not (A) affect
adversely the status of any REMIC established hereunder as a REMIC, or of the
related "regular interests" as
-68-
"regular interests" in any such REMIC, or (B) cause any such REMIC to engage in
a "prohibited transaction" or prohibited contribution pursuant to the REMIC
provisions.
Section 2.05 Issuance of Certificates. The Trustee acknowledges the
assignment to it on behalf of the Issuing Entity of the Mortgage Loans and the
other assets comprising the Trust Fund and, concurrently therewith, the
Securities Administrator has signed, and countersigned and delivered to the
Depositor, in exchange therefor, Certificates in such authorized denominations
representing such Percentage Interests as the Depositor has requested. The
Trustee agrees that it will hold the Mortgage Loans and such other assets as may
from time to time be delivered to it segregated on the books of the Trustee in
trust for the benefit of the Certificateholders.
Section 2.06 Representations and Warranties Concerning the Depositor. The
Depositor hereby represents and warrants to the Trustee, any NIMs Insurer, the
Master Servicer, Wilshire and the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
(b) is qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is necessary, except
where the failure so to qualify would not reasonably be expected to have a
material adverse effect on the Depositor's business as presently conducted
or on the Depositor's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(ii) the Depositor has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform
its obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Depositor; and neither the execution and delivery of this Agreement,
nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Depositor or its properties or the articles of incorporation or by-laws of
the Depositor, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on the Depositor's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(iv) the execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
other parties hereto,
-69-
constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms (subject to applicable bankruptcy
and insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened against the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of the Depositor
will be determined adversely to the Depositor and will if determined
adversely to the Depositor materially and adversely affect the Depositor's
ability to enter into this Agreement or perform its obligations under this
Agreement; and the Depositor is not in default with respect to any order of
any court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this
Agreement; and
(vii) immediately prior to the transfer and assignment to the Trustee,
each Mortgage Note and each Mortgage were not subject to an assignment or
pledge, and the Depositor had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell such Mortgage Loan to
the Trustee free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest.
Section 2.07 Representations and Warranties Concerning the Master Servicer
and Securities Administrator. Xxxxx Fargo Bank, N.A., in its capacity as Master
Servicer and Securities Administrator hereby represents and warrants to the
Sponsor, the Depositor, Wilshire and the Trustee as follows, as of the Closing
Date:
(i) It is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by the Master Servicer and the Securities
Administrator, to the extent necessary to ensure its ability to master
service the Mortgage Loans in accordance with the terms of this Agreement
and to perform any of its other obligations under this Agreement in
accordance with the terms hereof;
(ii) It has the full corporate power and authority to execute, deliver
and perform, and to enter into and consummate the transactions contemplated
by this Agreement and has duly authorized by all necessary corporate action
on its part the execution, delivery and performance of this Agreement; and
this Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms,
except that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(iii) The execution and delivery of this Agreement by it, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or
-70-
compliance with the terms hereof are in its ordinary course of business and
will not (A) result in a material breach of any term or provision of its
charter or by-laws or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which it
is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to it of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it; and it is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair its ability to perform or meet any of its
obligations under this Agreement.
(iv) No litigation is pending or, to the best of its knowledge,
threatened, against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for its execution, delivery and
performance of, or compliance with, this Agreement or the consummation of
the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, it has obtained the same.
Section 2.08 Representations, Warranties and Covenants of the Servicer.
I. Wilshire in its capacity as a Servicer hereby represents and warrants to
the Sponsor, the Master Servicer, the Securities Administrator, the Depositor
and the Trustee as follows, as of the Closing Date:
(i) It is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by a Servicer, to
the extent necessary to ensure its ability to service the Mortgage Loans in
accordance with the terms of this Agreement and to perform any of its other
obligations under this Agreement in accordance with the terms hereof;
(ii) It has the full corporate power and authority to execute, deliver
and perform, and to enter into and consummate the transactions contemplated
by this Agreement and has duly authorized by all necessary corporate action
on its part the execution, delivery and performance of this Agreement; and
this Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms,
except that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
-71-
(iii) The execution and delivery of this Agreement by it, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof are
in its ordinary course of business and will not (A) result in a material
breach of any term or provision of its charter or by-laws or (B) materially
conflict with, result in a material breach, violation or acceleration of,
or result in a material default under, the terms of any other material
agreement or instrument to which it is a party or by which it may be bound,
or (C) constitute a material violation of any statute, order or regulation
applicable to it of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it; and it is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair its
ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending or, to the best of its knowledge,
threatened, against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for its execution, delivery and
performance of, or compliance with, this Agreement or the consummation of
the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, it has obtained the same.
II. Wilshire hereby covenants to each of the other parties to this
Agreement as follows:
(a) it shall comply in the performance of its obligations under this
Agreement with all reasonable rules and requirements of the insurer under each
Required Insurance Policy;
(b) no written information, certificate of an officer, statement furnished
in writing or written report delivered to the Depositor, the Master Servicer or
the Trustee or any Affiliate of the Depositor, the Master Servicer or the
Trustee and prepared by it pursuant to this Agreement will be inaccurate in any
material respect; provided, however, that Wilshire shall be responsible for
inaccurate information provided to it by third parties; provided further,
however, that the covenant referred to in this Section 2.08(b) shall not be
breached if Wilshire corrects such material inaccuracy to the reasonable
satisfaction of the Depositor, Master Servicer or the Trustee or any affiliate
thereof, as applicable, within five (5) Business Days of receiving written
notice of or a Responsible Servicing Officer's actual knowledge of such
inaccuracy, and Wilshire shall be responsible only for any direct damages,
costs, liabilities or expenses arising from a breach that occurs prior to
Wilshire's correction thereof.
Section 2.09 Depositor Notification of NIM Notes. The Depositor shall
notify the Servicers, the Master Servicer, the Securities Administrator and the
Custodian in writing (i) when NIM Notes are issued and when all previously
issued NIM Notes are no longer outstanding and (ii) of the contact information
of the NIMs Insurer, if any.
-72-
ARTICLE III
ADMINISTRATION OF MORTGAGE LOANS
Section 3.01 Master Servicer. The Master Servicer shall supervise, monitor
and oversee the obligation of the Servicers to service and administer their
respective Mortgage Loans in accordance with the terms of the Applicable
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with each
Servicer as necessary from time-to-time to carry out the Master Servicer's
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by each Servicer and
shall cause each Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by such Servicer under the Applicable
Servicing Agreement. The Master Servicer shall independently and separately
monitor each Servicer's servicing activities with respect to each related
Mortgage Loan, reconcile the results of such monitoring with such information
provided in the previous sentence on a monthly basis and coordinate corrective
adjustments to the Servicers' and Master Servicer's records, and based on such
reconciled and corrected information, the Master Servicer shall provide such
information to the Securities Administrator as shall be necessary in order for
it to prepare the statements specified in Section 6.03, and prepare any other
information and statements required to be forwarded by the Master Servicer
hereunder. The Master Servicer shall reconcile the results of its monitoring
with the actual remittances of the Servicers to the Master Servicer Collection
Account pursuant to this Agreement.
If the Master Servicer and the Securities Administrator are the same
entity, then at any time the Master Servicer is terminated as Master Servicer,
the Securities Administrator shall likewise be removed as securities
administrator.
The Trustee shall furnish the Servicers and the Master Servicer with any
limited powers of attorney and other documents in form acceptable to it
necessary or appropriate to enable the Servicers and the Master Servicer to
service and administer the related Mortgage Loans and REO Property. The Trustee
shall have no liability with respect to the use of any such limited power of
attorney.
The Trustee or the Custodian shall provide access to the records and
documentation in possession of the Trustee or the Custodian regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request and
during normal business hours at the office of the Trustee or the Custodian;
provided, however, that, unless otherwise required by law, the Trustee or the
Custodian shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee or the Custodian shall allow representatives of
the above entities to photocopy any of the records and documentation and shall
provide equipment for that purpose at a charge that covers the Trustee's or the
Custodian's actual costs.
-73-
The Trustee shall execute and deliver to the applicable Servicer and the
Master Servicer upon request any court pleadings, requests for trustee's sale or
other documents necessary or desirable to (i) the foreclosure or trustee's sale
with respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.02 REMIC-Related Covenants. For as long as each REMIC shall
exist, the Trustee and the Securities Administrator shall act in accordance
herewith to assure continuing treatment of such REMIC as a REMIC, and the
Trustee and the Securities Administrator shall comply with any directions of the
Depositor, the applicable Servicer or the Master Servicer to assure such
continuing treatment. In particular, the Trustee shall not (a) sell or permit
the sale of all or any portion of the Mortgage Loans or of any investment of
deposits in an Account unless such sale is as a result of a repurchase of the
Mortgage Loans pursuant to this Agreement or the Trustee and Securities
Administrator have received a REMIC Opinion prepared at the expense of the
Issuing Entity; and (b) other than with respect to a substitution pursuant to
the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, accept any contribution to any REMIC after the Startup Day without
receipt of a REMIC Opinion.
Section 3.03 Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to the Trustee,
Securities Administrator and the Depositor the compliance by each Servicer with
its duties under the Applicable 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 the Applicable Servicing Agreement. In the event that the Master
Servicer, in its judgment, determines that a Servicer should be terminated in
accordance with the Applicable Servicing Agreement, or that a notice should be
sent pursuant to the Applicable Servicing Agreement with respect to the
occurrence of an event that, unless cured, would constitute grounds for such
termination, the Master Servicer shall notify the Depositor, Securities
Administrator and the Trustee thereof and the Master Servicer shall issue such
notice or take such other action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
Applicable Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the Applicable Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as servicer of the related Mortgage Loans or, if the
Master Servicer is unwilling or unable to act as a Servicer, any NIMs Insurer or
the Master Servicer shall cause the Trustee to appoint a successor servicer
selected by the Master Servicer that is eligible in accordance with the criteria
specified in this Agreement that is reasonably acceptable to the NIMs Insurer
(such consent not to be unreasonably withheld); provided, however, it is
understood and acknowledged by the parties hereto that there will be a period of
transition (not to exceed 90 days) before the actual servicing functions can be
fully transferred to such successor servicer. In either event, such enforcement,
including, without limitation, the legal prosecution of claims and the pursuit
of other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer, in its good faith
-74-
business judgment, would require were it the owner of the related Mortgage
Loans. The Master Servicer shall pay the costs of such enforcement at its own
expense subject to Section 3.03(c), provided that the Master Servicer shall not
be required to prosecute or defend any legal action except to the extent that
the Master Servicer shall have received reasonable indemnity for its costs and
expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor Servicer or
the transfer and assumption of servicing by the Master Servicer (including,
without limitation, (i) all legal costs and expenses and all due diligence costs
and expenses associated with an evaluation of the potential termination of a
Servicer as a result of an event of default by such Servicer and (ii) all costs
and expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise to
enable the successor service to service the Mortgage Loans in accordance with
this Agreement) are not fully and timely reimbursed by the terminated Servicer,
the Master Servicer shall be entitled to reimbursement of such costs and
expenses from the Master Servicer Collection Account pursuant to Section
4.03(b).
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the Applicable
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume liability
for the representations and warranties of such Servicer, if any, that it
replaces.
Section 3.04 Fidelity Bond. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions insurance
policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.05 Power to Act; Procedures. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority, subject to
the REMIC Provisions and the provisions of Article X hereof, to do any and all
things that it may deem necessary or desirable in connection with the master
servicing and administration of the Mortgage Loans, including but not limited to
the power and authority (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement; provided, however, that the Master Servicer shall not (and,
consistent with its responsibilities under Section 3.03, shall not permit any
Servicer to) knowingly or intentionally take any action, or fail to take (or
fail to cause to be taken) any action reasonably within its control and the
scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, would cause any REMIC
created hereunder to fail to qualify as a REMIC or result in the imposition of a
tax upon the
-75-
Issuing Entity (including but not limited to the tax on prohibited transactions
as defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC set forth in Section 860G(d) of the Code) unless the Master Servicer has
received an Opinion of Counsel (but not at the expense of the Master Servicer)
to the effect that the contemplated action will not would cause any REMIC
created hereunder to fail to qualify as a REMIC or result in the imposition of a
tax upon any REMIC created hereunder. The Trustee shall furnish the Master
Servicer, upon written request from a Servicing Officer, with any limited powers
of attorney (in form acceptable to the Trustee) empowering the Master Servicer
or any Servicer to execute and deliver instruments of satisfaction or
cancellation, or of partial or full release or discharge, and to foreclose upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend in
any court action relating to the Mortgage Loans or the Mortgaged Property, in
accordance with this Agreement, and the Trustee shall execute and deliver such
other documents, as the Master Servicer may request, to enable the Master
Servicer to master service and administer the Mortgage Loans and carry out its
duties hereunder, in each case in accordance with Accepted Master Servicing
Practices (and the Trustee shall have no liability for misuse of any such powers
of attorney by the Master Servicer or any Servicer). If the Master Servicer or
the Trustee has been advised that it is likely that the laws of the state in
which action is to be taken prohibit such action if taken in the name of the
Trustee or that the Trustee would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee in the appointment of a co-trustee
pursuant to Section 9.11 hereof. In the performance of its duties hereunder, the
Master Servicer shall be an independent contractor and shall not, except in
those instances where it is taking action in the name of the Trustee, be deemed
to be the agent of the Trustee.
Section 3.06 Due-on-Sale Clauses; Assumption Agreements. To the extent
provided in this Agreement, to the extent Mortgage Loans contain enforceable
due-on-sale clauses, the Master Servicer shall cause the Servicers to enforce
such clauses in accordance with the Applicable Servicing Agreement. If
applicable law prohibits the enforcement of a due-on-sale clause or such clause
is otherwise not enforced in accordance with the Applicable Servicing Agreement,
and, as a consequence, a Mortgage Loan is assumed, the original Mortgagor may be
released from liability in accordance with the Applicable Servicing Agreement.
Section 3.07 [Reserved].
Section 3.08 Documents, Records and Funds in Possession of Master Servicer
To Be Held for Trustee.
(a) The Master Servicer shall transmit to the Trustee or Custodian such
documents and instruments coming into the possession of the Master Servicer from
time to time as are required by the terms hereof, to be delivered to the Trustee
or Custodian. Any funds received by the Master Servicer in respect of any
Mortgage Loan or which otherwise are collected by the Master Servicer as
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan shall
be held for the benefit of the Trustee and the Certificateholders subject to the
Master Servicer's right to retain or withdraw from the Master Servicer
Collection Account the Master Servicing Compensation and other amounts provided
in this Agreement. The Master Servicer shall, and (to the extent provided in
this Agreement) shall cause each Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to
-76-
Certificateholders that are savings and loan associations, banks or insurance
companies, the Office of Thrift Supervision, the FDIC and the supervisory agents
and examiners of such Office and Corporation or examiners of any other federal
or state banking or insurance regulatory authority if so required by applicable
regulations of the Office of Thrift Supervision or other regulatory authority,
such access to be afforded without charge but only upon reasonable request in
writing and during normal business hours at the offices of the Master Servicer
designated by it. In fulfilling such a request, the Master Servicer shall not be
responsible for determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the control
of, the Master Servicer, in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, shall be held by the Master Servicer for and on behalf of
the Trustee and the Certificateholders and shall be and remain the sole and
exclusive property of the Trustee; provided, however, that the Master Servicer
and Wilshire shall be entitled to setoff against, and deduct from, any such
funds any amounts that are properly due and payable to the Master Servicer or
Wilshire under this Agreement.
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the Applicable 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 this
Agreement and the Applicable Servicing Agreements. It is understood and agreed
that such insurance shall be with insurers meeting the eligibility requirements
set forth in the Applicable Servicing Agreements and that no earthquake or other
additional insurance is to be required of any Mortgagor or to be maintained on
property acquired in respect of a defaulted loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
(b) Pursuant to Sections 4.01 and 4.02, any amounts collected by Master
Servicer, under any insurance policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or
released to the Mortgagor in accordance with this Agreement) shall be deposited
into the Master Servicer Collection Account, subject to withdrawal pursuant to
Sections 4.02 and 4.03. Any cost incurred by the Master Servicer or any
Servicers in maintaining any such insurance if the Mortgagor defaults in its
obligation to do so shall be added to the amount owing under the Mortgage Loan
where the terms of the Mortgage Loan so permit; provided, however, that the
addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders and shall be
recoverable by the Master Servicer or such Servicer pursuant to Sections 4.02
and 4.03.
Section 3.10 Presentment of Claims and Collection of Proceeds. The Master
Servicer shall (to the extent provided in this Agreement) cause the Servicers
to, prepare and present on behalf of the Trustee and the Certificateholders all
claims under the Insurance Policies and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured's claim) as
shall be necessary to realize recovery under such policies. Any proceeds
disbursed to the Master Servicer (or disbursed to a Servicer and remitted to the
Master Servicer) in respect of such policies, bonds or contracts shall be
promptly deposited in the Master Servicer Collection
-77-
Account upon receipt, except that any amounts realized that are to be applied to
the repair or restoration of the related Mortgaged Property as a condition
precedent to the presentation of claims on the related Mortgage Loan to the
insurer under any applicable Insurance Policy need not be so deposited (or
remitted).
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under this Agreement or the Applicable
Servicing Agreement, as applicable) to take, any action that would result in
noncoverage under any applicable Primary Mortgage Insurance Policy of any loss
which, but for the actions of such Master Servicer or Servicer, would have been
covered thereunder. The Master Servicer shall use its best reasonable efforts to
cause each Servicer (to the extent required under the Applicable 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 the
Applicable Servicing Agreement. The Master Servicer shall not, and shall not
permit any Servicer (to the extent required under this Agreement or the
Applicable Servicing Agreement, as applicable) 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 or the
Applicable Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer (to
the extent required under this Agreement or the Applicable Servicing Agreement,
as applicable) to present, on behalf of the Trustee and the Certificateholders,
claims to the insurer under any Primary Mortgage Insurance Policies and, in this
regard, to take such reasonable action as shall be necessary to permit recovery
under any Primary Mortgage Insurance Policies respecting defaulted Mortgage
Loans. Pursuant to Section 4.01 and 4.02, any amounts collected by the Master
Servicer under any Primary Mortgage Insurance Policies shall be deposited in the
Master Servicer Collection Account, subject to withdrawal pursuant to Section
4.03.
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies and
Documents. The Trustee or the Custodian shall retain possession and custody of
the originals (to the extent available) of any Primary Mortgage Insurance
Policies, or certificate of insurance if applicable, and any certificates of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement. Until all amounts distributable in respect of the
Certificates have been distributed in full and the Master Servicer otherwise has
fulfilled its obligations under this Agreement, the Trustee or its Custodian
shall also retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions of this Agreement and the Custodial
Agreement. The Master Servicer shall promptly deliver or cause to be delivered
to the Trustee or the Custodian upon the execution or receipt thereof the
originals of any Primary Mortgage Insurance Policies, any certificates of
renewal, and such other documents or instruments that constitute portions of the
Mortgage File that come into the possession of the Master Servicer from time to
time.
Section 3.13 Realization Upon Defaulted Mortgage Loans. The Master Servicer
shall cause each Servicer (to the extent required under the Applicable Servicing
Agreement) to foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged
-78-
Properties securing such of the Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for collection
of Delinquent payments, all in accordance with the terms and conditions of the
Applicable Servicing Agreement.
Section 3.14 Compensation for the Master Servicer. The Master Servicer will
be entitled to all income and gain realized from any investment of funds in the
Master Servicer Collection Account, pursuant to Article IV, for the performance
of its activities hereunder. Servicing compensation in the form of assumption
fees, if any, late payment charges, as collected, if any, or otherwise (but not
including any Prepayment Charge) shall be retained by the applicable Servicer
and need not be deposited in the Master Servicer Collection Account. The Master
Servicer shall be required to pay all expenses incurred by it in connection with
its activities hereunder and shall not be entitled to reimbursement therefor
except as provided in this Agreement.
Section 3.15 REO Property.
(a) In the event the Issuing Entity acquires ownership of any REO Property
in respect of any related Mortgage Loan, the deed or certificate of sale shall
be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders, which nominee shall not be a Servicer. The Master Servicer
shall, to the extent provided in this Agreement and the Applicable Servicing
Agreement, cause the applicable Servicer to comply with its obligations
hereunder and thereunder, as applicable, regarding any REO Property. Pursuant to
its efforts to sell such REO Property, the Master Servicer shall cause the
applicable Servicer to comply in the manner and to the extent required by this
Agreement and the Applicable Servicing Agreement, as applicable, in accordance
with the REMIC Provisions and in a manner that does not result in a tax on "net
income from foreclosure property" or cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the Applicable
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in a
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 unreimbursed Advances and other unreimbursed advances as well as any
unpaid Servicing Fees from Liquidation Proceeds received in connection with the
final disposition of such REO Property; provided, that any such unreimbursed
Advances as well as any unpaid Servicing Fees may be reimbursed or paid, as the
case may be, prior to final disposition, out of any net rental income or other
net amounts derived from such REO Property.
(d) To the extent provided in this Agreement, the Liquidation Proceeds from
the final disposition of the REO Property, net of any payment to the Master
Servicer and the applicable Servicer as provided above shall be deposited in a
Collection Account on or prior to the Determination Date in the month following
receipt thereof and be remitted by wire transfer in immediately available funds
to the Master Servicer for deposit into the related Master Servicer Collection
Account on the next succeeding Servicer Remittance Date.
Section 3.16 Annual Statement as to Compliance.
-79-
The Master Servicer and the Securities Administrator shall deliver (or
otherwise make available) (and the Master Servicer and Securities Administrator
shall cause any Servicing Function Participant engaged by it to deliver) to the
Depositor, any NIMs Insurer and the Securities Administrator on or before March
1 (with a ten-calendar day cure period) of each year, commencing in March 2008,
an Officer's Certificate stating, as to the signer thereof, that (A) a review of
such party's activities during the preceding calendar year or portion thereof
and of such party's performance under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant, has been made under
such officer's supervision and (B) to the best of such officer's knowledge,
based on such review, such party has fulfilled all its obligations under this
Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof.
The Master Servicer shall include all annual statements of compliance
received by it from each Servicer with its own annual statement of compliance to
be submitted to the Securities Administrator pursuant to this Section.
In the event the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by any such party is terminated, assigns
its rights and obligations under or resigns pursuant to the terms of this
Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, as the case may be, such party shall provide, an annual
statement of compliance pursuant to this Section 3.16 or to such applicable
agreement, as the case may be, notwithstanding any such termination, assignment
or resignation
Section 3.17 Reports on Assessment of Compliance and Attestation.
(a) By March 1 (with a ten-calendar day cure period) of each year,
commencing in March 2008, the Master Servicer, the Securities Administrator and
the Custodian each at its own expense, shall furnish or otherwise make
available, and each such party shall cause any Servicing Function Participant
engaged by it to furnish, each at its own expense, to the Securities
Administrator, the NIMs Insurer and the Depositor, a report on an assessment of
compliance with the Relevant Servicing Criteria that contains (A) a statement by
such party of its responsibility for assessing compliance with the Relevant
Servicing Criteria, (B) a statement that such party used the Relevant Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
party's assessment of compliance with the Relevant Servicing Criteria as of and
for the fiscal year covered by the Form 10-K required to be filed pursuant to
Sections 3.18(h), (i), (j) and (k), including, if there has been any material
instance of noncompliance with the Relevant Servicing Criteria, a discussion of
each such failure and the nature and status thereof, and (D) a statement that a
registered public accounting firm has issued an attestation report on such
party's assessment of compliance with the Relevant Servicing Criteria as of and
for such period.
No later than the end of each fiscal year for the Issuing Entity for which
a 10-K is required to be filed, the Master Servicer and the Custodian shall each
forward to the Securities Administrator and the Depositor the name of each
Servicing Function Participant engaged by it and what Relevant Servicing
Criteria will be addressed in the report on assessment of compliance prepared by
such Servicing Function Participant (provided, however, that the Master
-80-
Servicer need not provide such information to the Securities Administrator so
long as the Master Servicer and the Securities Administrator are the same
Person). When the Master Servicer, and the Securities Administrator (or any
Servicing Function Participant engaged by them) submit their assessments to the
Securities Administrator, such parties will also at such time include the
assessment and attestation pursuant to this Section 3.17 of each Servicing
Function Participant engaged by it.
Promptly after receipt of each report on assessment of compliance, (i) the
Depositor shall review each such report and, if applicable, consult with such
Servicer, the Master Servicer, the Securities Administrator and any Servicing
Function Participant engaged by any such party as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by such Servicer
by each such party, and (ii) the Securities Administrator shall confirm that the
assessments individually address the Relevant Servicing Criteria for each party
as set forth on Exhibit K in respect of each Servicer and notify the Depositor
of any exceptions.
The Master Servicer shall include all annual reports on assessment of
compliance received by it from the Servicers with its own assessment of
compliance to be submitted to the Securities Administrator pursuant to this
Section.
In the event the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by any such party is terminated, assigns
its rights and obligations under or resigns pursuant to the terms of this
Agreement, or any other applicable agreement, as the case may be, such party
shall provide, an assessment of compliance pursuant to this Section 3.17,
coupled with an attestation as required in this Section 3.17, or such applicable
agreement notwithstanding any such termination, assignment or resignation.
(b) By March 1 (with a ten-calendar day cure period) of each year,
commencing in March 2008, the Master Servicer, the Securities Administrator and
the Custodian, each at its own expense, shall cause, and each such party shall
cause any Servicing Function Participant engaged by it to cause, each at its own
expense, a registered public accounting firm (which may also render other
services to the Master Servicer, the Trustee, the Securities Administrator, or
such other Servicing Function Participants, as the case may be) and that is a
member of the American Institute of Certified Public Accountants to furnish an
attestation report to the Securities Administrator and the Depositor, to the
effect that (i) it has obtained a representation regarding certain matters from
the management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (ii) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the Public Company Accounting Oversight Board,
it is expressing an opinion as to whether such party's compliance with the
Relevant Servicing Criteria was fairly stated in all material respects, or it
cannot express an overall opinion regarding such party's assessment of
compliance with the Relevant Servicing Criteria. In the event that an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language.
(c) Promptly after receipt of each assessment of compliance and attestation
report, the Securities Administrator shall confirm that each assessment
submitted pursuant to Section
-81-
3.17(a) is coupled with an attestation meeting the requirements of Section
3.17(b) and notify the Depositor of any exceptions.
The Master Servicer shall include each such attestation furnished to it by
the Servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
In the event the Master Servicer, the Securities Administrator, the
Custodian or any Servicing Function Participant engaged by any such party, is
terminated, assigns its rights and duties under, or resigns pursuant to the
terms of, this Agreement, or any applicable Custodial Agreement or Subservicing
Agreement, as the case may be, such party shall cause a registered public
accounting firm to provide an attestation pursuant to this Section 3.17, or such
other applicable agreement, notwithstanding any such termination, assignment or
resignation.
Section 3.18 Periodic Filings.
(a) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and if
requested by the Depositor, the Securities Administrator shall prepare and file
on behalf of the Issuing Entity a Form 8-K, as required by the Exchange Act,
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K (other
than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be reported
by the parties set forth on Exhibit Q-3 to the Depositor and the Securities
Administrator and directed and approved by the Depositor, and the Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Form 8-K Disclosure Information or any Form 8-K except
as set forth in the next paragraph.
(b) For so long as the Issuing Entity is subject to the reporting
requirements of the Exchange Act, following the occurrence of a Reportable Event
that is known by a Responsible Officer (A) each party listed on Exhibit Q-3
hereto shall use commercially reasonable best efforts to provide prompt notice
to the Master Servicer, the Securities Administrator and the Depositor, by fax
and by phone or by e-mail and by phone, (B) each such party shall be required to
provide to the Securities Administrator and the Depositor, to the extent known,
in XXXXX-compatible format or in such other format as agreed upon by the
Securities Administrator and such party, the form and substance of any Form 8-K
Disclosure Information if applicable, together with the form set forth on
Exhibit O (the "Additional Disclosure Notification") by the close of business
New York City time on the 2nd Business Day following the occurrence of such
Reportable Event and (C) the Depositor, shall approve, as to form and substance,
or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Securities Administrator has no duty under this
Agreement to monitor or enforce the performance by the parties listed on Exhibit
Q-3 of their duties under this paragraph or proactively solicit or procure from
such parties any Form 8-K Disclosure Information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph.
(c) After preparing the Form 8-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 8-K to the Depositor.
Promptly, but no later than the
-82-
close of business on the third Business Day after the Reportable Event, the
Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 8-K. In the
absence of receipt of any written changes or approval, or if the Depositor does
not request a copy of a Form 8-K, the Securities Administrator shall be entitled
to assume that such Form 8-K is in final form and the Securities Administrator
may proceed with the process for execution and filing of the Form 8-K. A duly
authorized representative of the Master Servicer shall sign each Form 8-K. If a
Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be
amended, the Securities Administrator will follow the procedures set forth in
Section 3.18(n).
(d) Promptly (but no later than one Business Day) after filing with the
Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 8-K prepared and filed by the
Securities Administrator. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of its
duties under this Section 3.18 related to the timely preparation, execution and
filing of Form 8-K is contingent upon the other parties hereto strictly
observing all applicable deadlines in the performance of their duties under this
Section 3.18. The Depositor acknowledges that the performance by the Master
Servicer and the Securities Administrator of its duties under this Section 3.18
related to the timely preparation, execution and filing of Form 8-K is also
contingent upon the Servicers, the Custodian and any Servicing Function
Participant strictly observing deadlines no later than those set forth in this
paragraph that are applicable to the parties to this Agreement in the delivery
to the Securities Administrator of any necessary Form 8-K Disclosure Information
pursuant to this Agreement, the Custodial Agreement or any other applicable
agreement. Neither the Master Servicer nor the Securities Administrator shall
have any liability for any loss, expense, damage or claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such Form
8-K, where such failure results from the Securities Administrator's inability or
failure to obtain or receive, on a timely basis, any information from any other
party hereto or any Servicer, Custodian or Servicing Function Participant needed
to prepare, arrange for execution or file such Form 8-K.
(e) Within fifteen (15) days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Securities Administrator
shall, on behalf of the Issuing Entity and in accordance with industry
standards, prepare and file with the Commission via the Electronic Data
Gathering and Retrieval System (XXXXX), a Form 10-D with a copy of the Monthly
Statement for such Distribution Date as an exhibit thereto. Any disclosure in
addition to the Monthly Statement that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall be reported by the parties set forth
on Exhibit Q-1 to the Depositor and the Securities Administrator and directed
and approved by the Depositor pursuant to the following paragraph, and the
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure except as
set forth in the next paragraph.
(f) As set forth in Exhibit Q-1 hereto, for so long as the Issuing Entity
is subject to the reporting requirements of the Exchange Act, within five (5)
calendar days after the related Distribution Date (i) each party listed on
Exhibit Q-1 hereto shall be required to provide to the Depositor and the
Securities Administrator, to the extent known by a Responsible Officer, in
XXXXX-compatible format or in such other format as agreed upon by the Securities
-83-
Administrator and such party, the form and substance of any Additional Form 10-D
Disclosure if applicable together with an Additional Disclosure Notification,
and (ii) the Depositor will approve, as to form and substance, or disapprove, as
the case may be, the inclusion of the Additional Form 10-D Disclosure on Form
10-D. The Securities Administrator has no duty under this Agreement to monitor
or enforce the performance by the parties listed on Exhibit Q-1 of their duties
under this paragraph or proactively solicit or procure from such parties any
Additional Form 10-D Disclosure Information. The Depositor will be responsible
for any reasonable fees and expenses incurred by the Securities Administrator in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
(g) After preparing the Form 10-D, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-D to the Depositor
(provided that such Form 10-D includes any Additional Form 10-D Disclosure).
Within two Business Days after receipt of such copy, but no later than the 12th
calendar day after the Distribution Date, the Depositor shall notify the
Securities Administrator in writing (which may be furnished electronically) of
any changes to or approval of such Form 10-D. In the absence of receipt of any
written changes or approval, or if the Depositor does not request a copy of a
Form 10-D, the Securities Administrator shall be entitled to assume that such
Form 10-D is in final form and the Securities Administrator may proceed with the
process for execution and filing of the Form 10-D. A duly authorized
representative of the Master Servicer shall sign each Form 10-D. If a Form 10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Securities Administrator will follow the procedures set forth in Section
3.18(n). Promptly (but not later than one Business Day) after filing with the
Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-D prepared and filed by the
Securities Administrator. Form 10-D requires the registrant to indicate (by
checking "yes" or "no") that it "(1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days." The
Depositor hereby represents to the Securities Administrator that the Depositor
has filed all such required reports during the preceding 12 months and that it
has been subject to such filing requirement for the past 90 days. The Depositor
shall notify the Securities Administrator in writing, no later than the fifth
calendar day after the related Distribution Date with respect to the filing of a
report on Form 10-D, if the answer to the questions should be "no." The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such Form 10-D. The parties to this
Agreement acknowledge that the performance by the Master Servicer and the
Securities Administrator of its respective duties under this Section 3.18
related to the timely preparation, execution and filing of Form 10-D is
contingent upon the other parties hereto strictly observing all applicable
deadlines in the performance of their duties under this Section 3.18. The
Depositor acknowledges that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 3.18 related to the
timely preparation, execution and filing of Form 10-D is also contingent upon
the Servicers, the Custodian and any Servicing Function Participant strictly
observing deadlines no later than those set forth in this paragraph that are
applicable to the parties to this Agreement in the delivery to the Securities
Administrator of any necessary Additional Form 10-D Disclosure pursuant to this
Agreement, the Custodial Agreement or any other applicable agreement. Neither
the Master Servicer nor the Securities Administrator will have any liability for
any loss, expense, damage or claim arising out of or with respect to any failure
to properly prepare, execute and/or timely file
-84-
such Form 10-D resulting from the Securities Administrator's inability or
failure to obtain or receive any information needed to prepare, arrange for
execution or file such Form 10-D on a timely basis.
(h) On or prior to the 90th calendar day after the end of the fiscal year
for the Issuing Entity or such earlier date as may be required by the Exchange
Act (the "10-K Filing Deadline") (it being understood that the fiscal year for
the Issuing Entity ends on December 31st of each year) commencing in March 2008,
the Securities Administrator shall, on behalf of the Issuing Entity and in
accordance with industry standards, prepare and file with the Commission via
XXXXX a Form 10-K with respect to the Issuing Entity. Such Form 10-K shall
include the following items, in each case, as applicable, to the extent they
have been delivered to the Securities Administrator within the applicable time
frames set forth in this Agreement and Custodial Agreement: (i) an annual
compliance statement for the Master Servicer, each Servicer, the Securities
Administrator and any Servicing Function Participant engaged by any such party
(together with the Custodian, each a "Reporting Servicer"), as described in
Section 3.16 or Section 16.04 of this Agreement, as applicable, and the
Custodial Agreement; provided, however, that the Securities Administrator, at
its discretion, may omit from the Form 10-K any annual compliance statement that
is not required to be filed with such Form 10-K pursuant to Regulation AB;
(ii)(A) the annual reports on assessment of compliance with Servicing Criteria
for each Reporting Servicer (unless the Depositor has determined that such
compliance statement is not required by Regulation AB), as described in Section
3.17 or Section 16.05 of this Agreement, as applicable, and the Custodial
Agreement, and (B) if any Reporting Servicer's report on assessment of
compliance with Servicing Criteria described in Section 3.17 or Section 16.05,
as applicable, identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any Reporting Servicer's
report on assessment of compliance with Servicing Criteria described in Section
3.17 or Section 16.05 of this Agreement, as applicable, is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and an
explanation why such report is not included; provided, however, that the
Securities Administrator, at its discretion, may omit from the Form 10-K any
assessment of compliance or attestation report described in clause (iii) below
that is not required to be filed with such Form 10-K pursuant to Regulation AB;
(iii)(A) the registered public accounting firm attestation report for each
Reporting Servicer, as described in Section 3.17 and Section 16.05 of this
Agreement and the Custodial Agreement, and (B) if any registered public
accounting firm attestation report described under Section 3.17 or Section
16.05, as applicable, of this Agreement identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if any
such registered public accounting firm attestation report is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and an
explanation why such report is not included, and (iv) a Xxxxxxxx-Xxxxx
Certification in the form attached hereto as Exhibit L, executed by the senior
officer in charge of securitizations of the Master Servicer. Any disclosure or
information in addition to (i) through (iv) above that is required to be
included on Form 10-K ("Additional Form 10-K Disclosure") shall be reported by
the parties as set forth in Exhibit Q-2 to the Depositor and the Securities
Administrator and directed and approved by the Depositor pursuant to the
following paragraph and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
10-K Disclosure except or set forth in the next paragraph.
-85-
(i) As set forth in Exhibit Q-2 hereto, no later than March 1 (with a ten
calendar day cure period) of each year that the Issuing Entity is subject to the
Exchange Act reporting requirements, commencing in March 2008, (i) the parties
listed on Exhibit Q-2 hereto shall be required to provide to the Depositor and
the Securities Administrator, to the extent known by a Responsible Officer, in
XXXXX-compatible format or in such other format as agreed upon by the Securities
Administrator and such party, the form and substance of any Additional Form 10-K
Disclosure, if applicable together with an Additional Disclosure Notification,
and (ii) the Depositor will approve, as to form and substance, or disapprove, as
the case may be, the inclusion of the Additional Form 10-K Disclosure and shall
forward such Additional Form 10-K Disclosure. The Securities Administrator has
no duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit Q-2 of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-K
Disclosure Information. The Depositor will be responsible for any reasonable
fees and expenses incurred by the Securities Administrator in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph.
(j) After preparing the Form 10-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-K to the Depositor. Within
three Business Days after receipt of such copy, but no later than March 25th,
the Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K. In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-K, the Securities Administrator shall be
entitled to assume that such Form 10-K is in final form and the Securities
Administrator may proceed with the process for execution and filing of the Form
10-K. A senior officer of the Master Servicer in charge of the master servicing
function shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if
a previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 3.18(n). Promptly (but no later
than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website a final executed copy
of each Form 10-K prepared and filed by the Securities Administrator. Form 10-K
requires the registrant to indicate (by checking "yes" or "no") that it "(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days." The Depositor hereby represents to
the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the 15th calendar day of
March in any year in which the Trust is subject to the reporting requirements of
the Exchange Act, if the answer to the questions should be "no." The Securities
Administrator shall be entitled to rely on such representations in preparing,
executing and/or filing any such Form 10-K. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Securities
Administrator of its duties under this Section 3.18 related to the timely
preparation, execution and filing of Form 10-K is contingent upon such parties
(and any Servicing Function Participant) strictly observing all applicable
deadlines in the performance of their duties under this Section 3.18, Section
3.16 and Section 3.17. The Depositor acknowledges that the performance by the
Master Servicer and the Securities Administrator of its duties under this
Section 3.18 related to the timely preparation, execution and filing of Form
10-K is also contingent upon the Servicers, the Custodian and any
-86-
Servicing Function Participant strictly observing deadlines no later than those
set forth in this paragraph that are applicable to the parties to this Agreement
in the delivery to the Securities Administrator of any necessary Additional Form
10-K Disclosure, any annual statement of compliance and any assessment of
compliance and attestation pursuant to this Agreement, the Custodial Agreement
or any other applicable agreement. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file such Form 10-K resulting from the Securities
Administrator's inability or failure to obtain or receive any information from
any other party hereto or any Servicer, Custodian or Servicing Function
Participant needed to prepare, execute or file such Form 10-K.
(k) Each Form 10-K shall include a Xxxxxxxx-Xxxxx Certification, which
shall be in the form attached hereto as Exhibit L. Wilshire (with respect to any
year that it acted as a Servicer hereunder) shall sign and provide and cause
each subcontractor and subservicer determined by Wilshire to be "participating
in the servicing function" within the meaning of Item 1122 of Regulation AB, if
any, to provide a Sarbanes Certification as defined in Section 16.05 hereof
pursuant to and in accordance with the time frames set forth in Section 16.05
hereof, and each of the Master Servicer and the Securities Administrator shall
cause any Servicing Function Participant engaged by it to sign and provide, to
the person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person")
by March 1 (with a ten day cure period) of each year in which the Issuing Entity
is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (a "Back-Up
Certification") (in the form attached hereto as Exhibit M) upon which the
Certifying Person, the entity for which the Certifying Person acts as an officer
and such entity's officers, directors and affiliates (collectively, with the
Certifying Person, the "Certification Parties") can reasonably rely. The senior
officer of the Master Servicer in charge of the master servicing function shall
serve as the Certifying Person on behalf of the Issuing Entity. Such officer of
the Certifying Person can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at 000-000-0000. In the
event any such party or Servicing Function Participant engaged by any such party
is terminated or resigns pursuant to the terms of this Agreement, or any other
applicable agreement, as the case may be, such party shall provide a Back-Up
Certification to the Master Servicer pursuant to this Section 3.18 with respect
to the period of time it was subject to this Agreement or any other applicable
agreement, as the case may be. Notwithstanding the foregoing, (i) the Master
Servicer and the Securities Administrator shall not be required to deliver a
Back-Up Certification to each other if both are the same Person and the Master
Servicer is the Certifying Person and (ii) the Master Servicer shall not be
obligated to sign the Xxxxxxxx-Xxxxx Certification in the event that it does not
receive any Back-Up Certification required to be furnished to it pursuant to the
Applicable Servicing Agreement or Custodial Agreement.
(l) The Securities Administrator shall have no responsibility to file any
items with the Commission other than those specified in this Section and the
Master Servicer shall execute any and all Form 10-Ds, 8-Ks and 10-Ks required
hereunder.
(m) On or prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall prepare and file a Form 15 Suspension Notification relating
to the automatic suspension of reporting in respect of the Issuing Entity under
the Exchange Act.
-87-
(n) In the event that the Securities Administrator is unable to timely file
with the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Securities
Administrator will promptly notify electronically the Depositor of such
inability to make a timely filing with the Commission. In the case of Form 10-D
and 10-K, the parties to this Agreement will cooperate to prepare and file a
Form 12b-25 and a 10-D/A and 10K/A, as applicable, pursuant to Rule 12b-25 of
the Exchange Act. In the case of Form 8-K, the Securities Administrator will,
upon receipt of all required Form 8-K Disclosure Information and upon the
approval and direction of the Depositor, include such disclosure information on
the next succeeding Form 10-D to be filed for the Issuing Entity. In the event
that any previously filed Form 8-K, 10-D or 10-K needs to be amended, in
connection with any Additional Form 10-D Disclosure (other than, in the case of
Form 10-D, for the purpose of restating any Monthly Statement), Additional Form
10-K Disclosure or Form 8-K Disclosure Information, the Securities Administrator
will electronically notify the Depositor and such other parties to the
transaction as are affected by such amendment, and such parties will cooperate
to prepare any necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or
any amendment to Form 8-K, 10-D or 10-K shall be signed by duly authorized
representative or a senior officer in charge of master servicing, as applicable,
of the Master Servicer. The parties to this Agreement acknowledge that the
performance by the Master Servicer of its duties under this Section 3.18 related
to the timely preparation, execution and filing of Form 15, a Form 12b-25 or any
amendment to Form 8-K, 10-D or 10-K is contingent upon each such party
performing its duties under this Section. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file any such Form 15, Form 12b-25 or any amendments to
Forms 8-K, 10-D or 10-K, where such failure results from the Securities
Administrator's inability or failure to receive, on a timely basis, any
information from any other party hereto or any Servicer, any Custodian or any
Servicing Function Participant needed to prepare, arrange for execution or file
such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K.
(o) The Depositor and the Securities Administrator agree to use their good
faith efforts to cooperate in complying with the requirements of this Section
3.18.
(p) Each of the parties agrees to provide to the Securities Administrator
such additional information related to such party as the Securities
Administrator may reasonably request, including evidence of the authorization of
the person signing any certificate or statement, financial information and
reports, and such other information related to such party or its performance
hereunder.
(q) Any notice or notification required to be delivered by the Securities
Administrator or Master Servicer to the Depositor pursuant to this Section 3.18,
may be delivered via facsimile to (000) 000-0000, via email to xxxx_xxxx@xx.xxx
or telephonically by calling Xxxx Park at (000) 000-0000.
Section 3.19 Compliance with Regulation AB. Each of the parties hereto
acknowledges and agrees that the purpose of Sections 3.16, 3.17 and 3.18 is to
facilitate compliance by the Depositor with the provisions of Regulation AB, as
such may be amended or clarified from time to time. Therefore, each of the
parties agrees that the parties' obligations
-88-
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB and the
parties shall comply with requests made by the Depositor (consistent with any
such amendments, interpretive advice or guidance, convention, consensus or
advice of counsel) for delivery of additional or different information as the
Depositor may determine in good faith is necessary to comply with the provisions
of Regulation AB. Any such supplementation or modification shall be made in
accordance with Section 11.02 without the consent of the Certificateholders, and
may result in a change in the reports filed by the Securities Administrator on
behalf of the Issuing Entity under the Exchange Act.
Section 3.20 Servicing Rights Owner.
At the Servicing Rights Owner's request, Wilshire shall resign as Servicer
with respect to those Mortgage Loans it is servicing hereunder upon the
selection and appointment of a successor servicer by the Servicing Rights Owner;
provided that the Servicing Rights Owner delivers to the Master Servicer, the
Trustee, the Securities Administrator and Wilshire a letter indicating that such
successor servicer designated by the Servicing Rights Owner meets the
eligibility requirements for a successor servicer, including that such successor
servicer is a Qualified Servicer or is a servicer acceptable to the Rating
Agencies. No appointment of a successor servicer hereunder shall be effective
until the Master Servicer shall have consented thereto. Upon such appointment,
at the date specified in such letter such successor servicer will become a
servicer pursuant to the terms of this Agreement. Any successor servicer shall
be an institution that is a Xxxxxx Mae and Xxxxxxx Mac approved seller/servicer
in good standing, shall be willing to service the Mortgage Loans and shall
accept such delegation and assignment, and shall service the Mortgage Loans
pursuant to a servicing agreement entered into among the successor servicer, the
Depositor and the Master Servicer, provided that such servicing agreement shall
prohibit the successor servicer from causing any Adverse REMIC Event.
Section 3.21 Rights of the NIMs Insurer.
Each of the rights of the NIMs Insurer set forth in this Agreement shall
exist so long as the NIM Notes issued pursuant to the Indenture remain
outstanding or the NIMs Insurer is owed amounts in respect of its guarantee of
payment on such NIM Notes; provided, however, the NIMS Insurer shall not have
any rights hereunder (except pursuant to Section 10.14 in the case of clause
(ii) below) during the period of time, if any, that (i) the NIMS Insurer has not
undertaken to guarantee certain payments of notes issued pursuant to the
Indenture or (ii) any default has occurred and is continuing under the insurance
policy issued by the NIMS Insurer with respect to such notes.
ARTICLE IV
ACCOUNTS
Section 4.01 Collection Accounts.
(a) The Master Servicer shall enforce the obligation of each Servicer to
establish and maintain a Collection Account in accordance with the Applicable
Servicing Agreement, with records to be kept with respect thereto on a Mortgage
Loan by Mortgage Loan basis, into which
-89-
accounts shall be deposited within two Business Days (or as of such other time
specified in this Agreement) of receipt all collections of principal and
interest on any Mortgage Loan and with respect to any REO Property received by a
Servicer, including Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds, Subsequent Recoveries and advances made from the Servicer's own funds
(less servicing compensation as permitted by this Agreement in the case of the
Servicer) and all other amounts to be deposited in the Collection Account.
Wilshire is hereby authorized to make withdrawals from and deposits to the
related Collection Account for purposes required or permitted by this Agreement.
To the extent provided in the Applicable Servicing Agreement, the Collection
Account shall be held in a Designated Depository Institution and segregated on
the books of such institution in the name of the Trustee for the benefit of
Certificateholders.
(b) To the extent provided in this Agreement, amounts on deposit in a
Collection Account may be invested in Permitted Investments in the name of the
Trustee for the benefit of Certificateholders and, except as provided in the
preceding paragraph, not commingled with any other funds, such Permitted
Investments to mature, or to be subject to redemption or withdrawal, no later
than the date on which such funds are required to be withdrawn for deposit in
the Master Servicer Collection Account, and shall be held until required for
such deposit. The income earned from Permitted Investments made pursuant to this
Section 4.01 or other benefits arising from the related Collection Account shall
be paid to Wilshire under this Agreement, and the risk of loss of moneys
required to be distributed to the Certificateholders resulting from such
investments related to Wilshire's account shall be borne by and be the risk of
Wilshire, as set forth in this Agreement. Wilshire (to the extent provided in
this Agreement) shall deposit the amount of any such loss in the Collection
Account within two Business Days of receipt of notification of such loss but not
later than the second Business Day prior to the Distribution Date on which the
moneys so invested are required to be distributed to the Certificateholders.
(c) [Reserved].
(d) Withdrawals by the Master Servicer may be made from the Master Servicer
Collection Account only to make remittances as provided in Sections 4.02, 4.03
and 13.05; to reimburse the Master Servicer or a Servicer for Advances which
have been recovered by subsequent collection from the related Mortgagor; to
remove amounts deposited in error; to remove fees, charges or other such amounts
deposited on a temporary basis; or to clear and terminate the account at the
termination of this Agreement in accordance with Section 10.01. As provided in
Sections 4.02(b) and 13.05 certain amounts otherwise due to Wilshire may be
retained by Wilshire as set forth in this Agreement and need not be deposited in
the Collection Account.
Section 4.02 Master Servicer Collection Account.
(a) The Master Servicer shall establish and maintain in the name of the
Trustee, for the benefit of the Certificateholders, the Master Servicer
Collection Account as a segregated trust account or accounts. The Master
Servicer Collection Account may be a sub-account of the Distribution Account.
The Master Servicer will deposit in the Master Servicer Collection Account as
identified by the Master Servicer and as received by the Master Servicer, the
following amounts:
-90-
(i) Any amounts withdrawn from a Collection Account or other permitted
account;
(ii) Any Advance and any Compensating Interest Payments;
(iii) Any Insurance Proceeds, Liquidation Proceeds or Subsequent
Recoveries received by or on behalf of the Master Servicer or which were
not deposited in a Collection Account or other permitted account;
(iv) The repurchase price with respect to any Mortgage Loans
repurchased and all proceeds of any Mortgage Loans or property acquired in
connection with the optional termination of the trust;
(v) Any amounts required to be deposited with respect to losses on
investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master Servicer
and required to be deposited in the Master Servicer Collection Account
pursuant to this Agreement.
(b) All amounts deposited to the Master Servicer Collection Account shall
be held by the Master Servicer in the name of the Trustee in trust for the
benefit of the Certificateholders in accordance with the terms and provisions of
this Agreement. The requirements for crediting the Master Servicer Collection
Account or the Distribution Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of (i) prepayment or late payment charges or assumption, tax service,
statement account or payoff, substitution, satisfaction, release and other like
fees and charges and (ii) the items enumerated in Sections 4.05(a)(i), (ii),
(iii), (iv), (vi), (vii), (viii), (ix), (xi) and (xii) with respect to the
Securities Administrator, need not be credited by the Master Servicer or the
applicable Servicer to the Distribution Account or the Master Servicer
Collection Account, as applicable. In the event that the Master Servicer shall
deposit or cause to be deposited to the Distribution Account any amount not
required to be credited thereto, the Securities Administrator, upon receipt of a
written request therefor signed by a Servicing Officer of the Master Servicer,
shall promptly transfer such amount to the Master Servicer from the Distribution
Account, any provision herein to the contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection
Account shall be invested, in the name of the Trustee, or its nominee, for the
benefit of the Certificateholders, in Permitted Investments as directed by
Master Servicer. All Permitted Investments shall mature or be subject to
redemption or withdrawal on or before, and shall be held until, the next
succeeding Distribution Account Deposit Date. Any and all investment earnings on
amounts on deposit in the Master Servicer Collection Account from time to time
shall be for the account of the Master Servicer. The Master Servicer from time
to time shall be permitted to withdraw or receive distribution of any and all
investment earnings from the Master Servicer Collection Account. The risk of
loss of moneys required to be distributed to the Certificateholders resulting
from such investments shall be borne by and be the risk of the Master Servicer.
The Master Servicer shall deposit the amount of any such loss in the Master
Servicer Collection Account within two Business Days of receipt of notification
of such loss but not later than the second
-91-
Business Day prior to the Distribution Date on which the moneys so invested are
required to be distributed to the Certificateholders.
Section 4.03 Permitted Withdrawals and Transfers from the Master Servicer
Collection Account.
(a) The Master Servicer will, from time to time on demand of the Master
Servicer, the Trustee or the Securities Administrator, make or cause to be made
such withdrawals or transfers from the Master Servicer Collection Account as the
Master Servicer has designated for such transfer or withdrawal pursuant to this
Agreement. The Master Servicer may clear and terminate the Master Servicer
Collection Account pursuant to Section 10.01 and remove amounts from time to
time deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from the Master
Servicer Collection Account (i) any expenses recoverable by the Trustee, the
Master Servicer or the Securities Administrator pursuant to this Agreement,
including but not limited to Sections 2.01(b), 3.03, 7.04 and 9.05 and (ii) any
amounts payable to the Master Servicer as set forth in Section 3.14.
(c) In addition, on or before each Distribution Account Deposit Date, the
Master Servicer shall deposit in the Distribution Account (or remit to the
Securities Administrator for deposit therein) any Advances required to be made
by the Master Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution Account
Deposit Date, the Master Servicer will transfer all Available Funds on deposit
in the Master Servicer Collection Account with respect to the related
Distribution Date to the Securities Administrator for deposit in the
Distribution Account.
Section 4.04 Distribution Account.
(a) The Securities Administrator shall establish and maintain in the name
of the Trustee, for the benefit of the Certificateholders, the Distribution
Account as a segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held by the
Securities Administrator in the name of the Trustee in trust for the benefit of
the Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of the Trust
Fund segregated on the books of the Securities Administrator and held by the
Securities Administrator in trust in its Corporate Trust Office, and the
Distribution Account and the funds deposited therein shall not be subject to,
and shall be protected to the maximum extent permitted by applicable law from,
all claims, liens, and encumbrances of any creditors or depositors of the
Securities Administrator, the Trustee or the Master Servicer (whether made
directly, or indirectly through a liquidator or receiver of the Securities
Administrator, the Trustee or the Master Servicer). The Distribution Account
shall be an Eligible Account. The amount at any time credited to the
Distribution Account shall be (i) fully insured by the FDIC to the maximum
-92-
coverage provided thereby or (ii) invested in the name of the Trustee, in such
Permitted Investments selected by the Master Servicer or deposited in demand
deposits with such depository institutions as selected by the Master Servicer,
provided that time deposits of such depository institutions would be a Permitted
Investment. All Permitted Investments shall mature or be subject to redemption
or withdrawal on or before, and shall be held until, the next succeeding
Distribution Date if the obligor for such Permitted Investment is the Master
Servicer or, if such obligor is any other Person, the Business Day preceding
such Distribution Date. All investment earnings on amounts on deposit in the
Distribution Account or benefit from funds uninvested therein from time to time
shall be for the account of the Securities Administrator. The Securities
Administrator shall be permitted to withdraw or receive distribution of any and
all investment earnings from the Distribution Account on each Distribution Date.
If there is any loss on a Permitted Investment or demand deposit, the Securities
Administrator shall deposit such amount in the Distribution Account. With
respect to the Distribution Account and the funds deposited therein, the
Securities Administrator shall take such action as may be necessary to ensure
that the Certificateholders shall be entitled to the priorities afforded to such
a trust account (in addition to a claim against the estate of the Trust) as
provided by 12 U.S.C. Section 92a(e), and applicable regulations pursuant
thereto, if applicable, or any applicable comparable state statute applicable to
state chartered banking corporations.
Section 4.05 Permitted Withdrawals and Transfers from the Distribution
Account.
(a) The Securities Administrator will, from time to time on demand of the
Master Servicer, make or cause to be made such withdrawals or transfers from the
Distribution Account as the Master Servicer has designated for such transfer or
withdrawal pursuant to this Agreement for the following purposes (limited in the
case of amounts due the Master Servicer to those not withdrawn from the Master
Servicer Collection Account in accordance with the terms of this Agreement):
(i) to reimburse the Master Servicer or any Servicer for any Advance
of its own funds or any advance of such Servicer's own funds, the right of
the Master Servicer or a Servicer to reimbursement pursuant to this
subclause (i) being limited to amounts received on a particular Mortgage
Loan (including, for this purpose, the Purchase Price therefor, Insurance
Proceeds and Liquidation Proceeds) which represent late payments or
recoveries of the principal of or interest on such Mortgage Loan respecting
which such Advance or advance was made;
(ii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds or Liquidation Proceeds relating to a particular Mortgage Loan for
amounts expended by the Master Servicer or such Servicer in good faith as a
Servicing Advance in connection with the restoration of the related
Mortgaged Property which was damaged by an Uninsured Cause or in connection
with the liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds relating to a particular Mortgage Loan for insured expenses
incurred with respect to such Mortgage Loan and to reimburse the Master
Servicer or such Servicer from Liquidation Proceeds from a particular
Mortgage Loan for Liquidation Expenses incurred with respect to such
Mortgage Loan; provided that the Master Servicer shall not be entitled to
reimbursement for Liquidation Expenses with respect to a Mortgage Loan to
the extent
-93-
that (i) any amounts with respect to such Mortgage Loan were paid as Excess
Liquidation Proceeds pursuant to clause (xi) of this Section 4.05(a) to the
Master Servicer; and (ii) such Liquidation Expenses were not included in
the computation of such Excess Liquidation Proceeds;
(iv) to pay the Master Servicer or any Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with the
liquidation of any Mortgage Loan, the amount which it or such Servicer
would have been entitled to receive under subclause (ix) of this Section
4.05(a) as servicing compensation on account of each defaulted scheduled
payment on such Mortgage Loan if paid in a timely manner by the related
Mortgagor;
(v) to pay the Master Servicer or any Servicer from the Purchase Price
for any Mortgage Loan, the amount which it or such Servicer would have been
entitled to receive under subclause (ix) of this Section 4.05(a) as
servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for advances of
funds pursuant to Sections, and the right to reimbursement pursuant to this
subclause being limited to amounts received on the related Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance
Proceeds and Liquidation Proceeds) which represent late recoveries of the
payments for which such advances were made;
(vii) to reimburse the Master Servicer or any Servicer for any Advance
or advance, after a Realized Loss has been allocated with respect to the
related Mortgage Loan if the Advance or advance has not been reimbursed
pursuant to clauses (i) and (vi);
(viii) to pay the Master Servicer as set forth in Section 3.14;
(ix) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to this Agreement,
including but not limited to Sections 3.03, 7.04(c) and (d);
(x) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not retained by
the applicable Servicer;
(xi) to reimburse or pay any Servicer any such amounts as are due
thereto under the Applicable Servicing Agreement and have not been retained
by or paid to the Servicer, to the extent provided in this Agreement or the
Applicable Servicing Agreement, as applicable;
(xii) to reimburse the Trustee or the Securities Administrator for
expenses, costs and liabilities incurred by or reimbursable to it pursuant
to this Agreement;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant to
Section 9.01.
(b) The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the
-94-
Distribution Account pursuant to subclauses (i) through (vi), inclusive, and
(viii) or with respect to any such amounts which would have been covered by such
subclauses had the amounts not been retained by the Master Servicer without
being deposited in the Distribution Account under Section 4.02(b).
(c) On each Distribution Date, the Securities Administrator shall
distribute the Available Funds for the Mortgage Loans to the Holders of the
Certificates in accordance with Section 6.01.
ARTICLE V
CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be executed by manual
or facsimile signature on behalf of the Securities Administrator by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Securities Administrator shall bind the Issuing Entity,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of such authentication and delivery. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form set forth as attached hereto executed
by the Securities Administrator by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication. On
the Closing Date, the Securities Administrator shall authenticate the
Certificates to be issued at the written direction of the Depositor, or any
Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and Exchange of
Certificates.
(a) The Securities Administrator shall maintain, or cause to be maintained
in accordance with the provisions of Section 5.09 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of Sections (b) and (c)
below and to such reasonable regulations as it may prescribe, the Securities
Administrator shall provide for the registration of Certificates and of
Transfers and exchanges of Certificates as herein provided. Upon surrender for
registration of Transfer of any Certificate, the Securities Administrator shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class and of like
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator shall
execute, authenticate and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of Transfer or exchange shall be accompanied by a
written instrument of Transfer in form satisfactory to the Securities
Administrator duly executed by the holder thereof or his attorney duly
authorized in writing.
-95-
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required. All
Certificates surrendered for registration of Transfer or exchange shall be
canceled and subsequently destroyed by the Securities Administrator in
accordance with such Securities Administrator's customary procedures.
(b) No Transfer of a Class C or Class P Certificate shall be made unless
such Transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. In the event that a Transfer is to be made in reliance upon an exemption
from the Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
Transfer and such Certificateholder's prospective transferee shall (except with
respect to the initial transfer of a Class C or Class P Certificate by Xxxxxxx
Xxxxx & Co.) each certify to each Securities Administrator in writing the facts
surrounding the Transfer in substantially the form set forth in Exhibit F-1 (the
"Transferor Representation Letter") and (i) deliver a letter in substantially
the form of either Exhibit F-2 (the "Investor Representation Letter") or Exhibit
F-3 (the "Rule 144A Letter") or (ii) there shall be delivered to the Securities
Administrator an Opinion of Counsel that such Transfer may be made pursuant to
an exemption from the Securities Act, which Opinion of Counsel shall not be an
expense of the Depositor or the Securities Administrator. The Depositor shall
provide to any Holder of a Class C or Class P Certificate and any prospective
transferee designated by any such Holder, information regarding the related
Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for Transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A. The
Securities Administrator shall cooperate with the Depositor in providing the
Rule 144A information referenced in the preceding sentence, including providing
to the Depositor such information in the possession of the Securities
Administrator regarding the Certificates, the Mortgage Loans and other matters
regarding the Trust Fund as the Depositor shall reasonably request to meet its
obligation under the preceding sentence. Each Holder of a Class C or Class P
Certificate desiring to effect such Transfer shall, and does hereby agree to,
indemnify the Depositor and the Securities Administrator against any liability
that may result if the Transfer is not so exempt or is not made in accordance
with such federal and state laws.
Notwithstanding the foregoing, no Transfer of a Class C or Class P
Certificate (including the initial issuance thereof) shall be registered unless
the prospective transferee certifies to the Securities Administrator that such
transferee is not acquiring the Class C or Class P Certificates as a "middleman"
as that term is defined in Treasury Regulation Section 1.671-5(b)(10) in a
letter substantially in the form set forth in Exhibit F-4 ("Middleman
Representation Letter").
No transfer of a Certificate that is neither an ERISA Restricted
Certificate nor a Class R Certificate shall be registered unless the transferee
provides the Securities Administrator with a representation that either (i) such
transferee is not, and is not acting for, on behalf of or with any assets of, an
employee benefit plan or other arrangement subject to Title I of ERISA or plan
subject to Section 4975 of the Code, or (ii) until the termination of the Swap
Agreement and the
-96-
Cap Agreement, the acquisition and holding of the Certificate will not
constitute or result in a nonexempt prohibited transaction under Title I of
ERISA or Section 4975 of the Code.
No transfer of an ERISA Restricted Certificate or a Class R Certificate
will be registered unless the Securities Administrator has received (A) a
representation to the effect that such transferee is not an employee benefit
plan subject to Title I of ERISA, a plan subject to Section 4975 of the Code or
a plan subject to any state, local, federal, non-U.S. or other law substantively
similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(collectively, a "Plan"), and is not directly or indirectly acquiring such
Certificate for, on behalf of, or with any assets of any such Plan, or (B)
solely in the case of an ERISA Restricted Certificate (I) if the Certificate has
been the subject of an ERISA-Qualifying Underwriting, a representation to the
effect that such transferee is an insurance company that is acquiring the
Certificate with assets contained in an "insurance company general account," as
defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60, and the acquisition and holding of the Certificate are covered and exempt
under Sections I and III of PTCE 95-60, or (II) solely in the case of a
Definitive Certificate, an Opinion of Counsel satisfactory to the Securities
Administrator, and upon which the Securities Administrator shall be entitled to
rely, to the effect that the acquisition and holding of such Certificate will
not constitute or result in a nonexempt prohibited transaction under Title I of
ERISA or Section 4975 of the Code, or a violation of Similar Law, and will not
subject the Securities Administrator, the Master Servicer, the Trustee or the
Depositor to any obligation in addition to those expressly undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Master Servicer, the Trustee or the Depositor.
Except in the case of a Definitive Certificate, the representations set
forth in the two immediately preceding paragraphs of this Section 5.02(b), other
than clause (B)(II) in the immediately preceding paragraph, shall be deemed to
have been made to the Securities Administrator by the transferee's acceptance of
a Certificate (or the acceptance by a Certificate Owner of the beneficial
interest in any Class of Certificate).
Notwithstanding any other provision herein to the contrary, any purported
transfer of a Certificate to or on behalf of a Plan without the delivery to the
Securities Administrator of a representation or an Opinion of Counsel
satisfactory to the Securities Administrator as described above shall be void
and of no effect. The Securities Administrator shall not be under any liability
to any Person for any registration or transfer of any Certificate that is in
fact not permitted by this Section 5.02(b), nor shall the Trustee or the
Securities Administrator be under any liability for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the transfer
was registered by the Securities Administrator in accordance with the foregoing
requirements. The Trustee or the Securities Administrator shall be entitled, but
not obligated, to recover from any Holder of any Certificate that was in fact a
Plan and that held such Certificate in violation of this Section 5.02(b) all
payments made on such Certificate at and after the time it commenced such
holding. Any such payments so recovered shall be paid and delivered to the last
preceding Holder of such Certificate that is not a Plan.
(c) Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have
-97-
agreed to be bound by the following provisions, and the rights of each Person
acquiring any Ownership Interest in a Class R Certificate are expressly subject
to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Permitted Transferee and shall promptly notify the
Securities Administrator of any change or impending change in its status as
a Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be purchased,
transferred or sold, directly or indirectly, except in accordance with the
provisions hereof. No Ownership Interest in a Class R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Class R
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above, the
Securities Administrator shall have been furnished with an affidavit (a
"Transferee's Letter") of the initial owner or the proposed transferee in
the form attached hereto as Exhibit E-1 and an affidavit (a "Transferor
Certificate") of the proposed transferor in the form attached hereto as
Exhibit E-2. In the absence of a contrary instruction from the transferor
of a Class R Certificate, declaration (11) in Appendix A of the
Transferee's Letter may be left blank. If the transferor requests by
written notice to the Securities Administrator prior to the date of the
proposed transfer that one of the two other forms of declaration (11) in
Appendix A of the Transferee's Letter be used, then the requirements of
this Section 5.02(c)(ii) shall not have been satisfied unless the
Transferee's Letter includes such other form of declaration.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to obtain a Transferee's Letter from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class R Certificate, (B) to obtain a Transferee's Letter from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Class R Certificate and (C) not to
Transfer its Ownership Interest in a Class R Certificate or to cause the
Transfer of an Ownership Interest in a Class R Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee. Further, no transfer, sale or other disposition of any
Ownership Interest in a Class R Certificate may be made to a person who is
not a U.S. Person (within the meaning of Section 7701 of the Code) unless
such person furnishes the transferor and the Securities Administrator with
a duly completed and effective Internal Revenue Service Form W-8ECI (or any
successor thereto) and the Securities Administrator consents to such
transfer, sale or other disposition in writing.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Class R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Class R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class R Certificate. The Securities Administrator shall be
under no liability to any Person for any registration of Transfer of a
Class R Certificate that is in fact not permitted by Section 5.02(b) and
this Section 5.02(c) or for making any payments due on such Certificate to
the Holder thereof or taking any other action with respect to such Holder
under the
-98-
provisions of this Agreement so long as the Transfer was registered after
receipt of the related Transferee's Letter. The Securities Administrator
shall be entitled but not obligated to recover from any Holder of a Class R
Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Class R Certificate at and
after either such time. Any such payments so recovered by the Securities
Administrator shall be paid and delivered by the Securities Administrator
to the last preceding Permitted Transferee of such Certificate.
(v) At the option of the Holder of the Class R Certificate, the Class
SWR Interest, the Class LTR Interest and the Residual Interest may be
severed and represented by separate certificates (with the separate
certificate that represents the Residual Interest also representing all
rights of the Class R Certificate to distributions attributable to an
interest rate on the Class R Certificate in excess of the REMIC
Pass-Through Rate); provided, however, that such separate certification may
not occur until the Securities Administrator receives a REMIC Opinion to
the effect that separate certification in the form and manner proposed
would not result in the imposition of federal tax upon the Issuing Entity
or any of the REMICs provided for herein or cause any of the REMICs
provided for herein to fail to qualify as a REMIC; and provided further,
that the provisions of Sections 5.02(b) and (c) will apply to each such
separate certificate as if the separate certificate were a Class R
Certificate. If, as evidenced by a REMIC Opinion, it is necessary to
preserve the REMIC status of any of the REMICs provided for herein, the
Class SWR Interest, the Class LTR Interest and the Residual Interest shall
be severed and represented by separate Certificates (with the separate
certificate that represents the Residual Interest also representing all
rights of the Class R Certificate to distributions attributable to an
interest rate on the Class R Certificate in excess of the REMIC
Pass-Through Rate).
The restrictions on Transfers of a Class R Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Class R Certificate may be deleted) with respect to Transfers occurring
after delivery to the Securities Administrator of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Securities Administrator or
the Depositor, to the effect that the elimination of such restrictions will not
cause any of the REMICs provided for herein to fail to qualify as a REMIC at any
time that the Certificates are outstanding or result in the imposition of any
tax on the Issuing Entity, any REMIC provided for herein, a Certificateholder or
another Person. Each Person holding or acquiring any Ownership Interest in a
Class R Certificate hereby consents to any amendment of this Agreement that,
based on an Opinion of Counsel furnished to the Securities Administrator, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Class R Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Class R Certificate that is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The transferor of the Class R Certificate shall notify the Securities
Administrator in writing upon the transfer of the Class R Certificate.
-99-
(e) The preparation and delivery of all certificates, opinions and other
writings referred to above in this Section 5.02 shall not be an expense of the
Issuing Entity, the Depositor or the Securities Administrator.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate is surrendered to the Securities Administrator or the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and of the ownership thereof and
(b) there is delivered to the Securities Administrator and the NIMs Insurer such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Securities Administrator that such
Certificate has been acquired by a bona fide purchaser, the Securities
Administrator shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Class, tenor and Percentage Interest. In connection with the
issuance of any new Certificate under this Section 5.03, the Securities
Administrator may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Securities Administrator)
connected therewith. Any replacement Certificate issued pursuant to this Section
5.03 shall constitute complete and indefeasible evidence of ownership in the
Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time. All Certificates surrendered
to the Securities Administrator under the terms of this Section 5.03 shall be
canceled and destroyed by the Securities Administrator in accordance with its
standard procedures without liability on its part.
Section 5.04 Persons Deemed Owners. The NIMs Insurer, Securities
Administrator and any agent of the Securities Administrator may treat the Person
in whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Securities Administrator, NIMs
Insurer, nor any agent of the Securities Administrator or NIMs Insurer shall be
affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and Addresses. If
three or more Certificateholders (a) request such information in writing from
the Securities Administrator, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the NIMs
Insurer or the Depositor shall request such information in writing from the
Securities Administrator, then the Securities Administrator shall, within ten
Business Days after the receipt of such request, provide the Depositor, the NIMs
Insurer or such Certificateholders at such recipients' expense the most recent
list of the Certificateholders of the Trust Fund held by the Securities
Administrator, if any. The Depositor and every Certificateholder, by receiving
and holding a Certificate, agree that the Securities Administrator shall not be
held accountable by reason of the disclosure of any such information as to the
list of the Certificateholders hereunder, regardless of the source from which
such information was derived.
Section 5.06 Book-Entry Certificates. The Regular Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to the
Depository by or on behalf of the Depositor. The Book-Entry Certificates shall
initially be registered on the Certificate Register in the name of the
Depository
-100-
or its nominee, and no Certificate Owner of a Book-Entry Certificate will
receive a definitive certificate representing such Certificate Owner's interest
in such Certificates, except as provided in Section 5.08. Unless and until
definitive, fully registered Certificates ("Definitive Certificates") have been
issued to the Certificate Owners of the Book-Entry Certificates pursuant to
Section 5.08:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor, the NIMs Insurer and the Securities Administrator may
deal with the Depository and the Depository Participants for all purposes
(including the making of distributions) as the authorized representative of the
respective Certificate Owners of the Book-Entry Certificates;
(c) registration of the Book-Entry Certificates may not be transferred by
the Securities Administrator except to another Depository;
(d) the rights of the respective Certificate Owners of the Book-Entry
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of the Book-Entry Certificates and the Depository and/or the
Depository Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.08, the Depository will
make book-entry transfers among the Depository Participants and receive and
transmit distributions of principal and interest on the related Certificates to
such Depository Participants;
(e) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants;
(f) the Securities Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants; and
(g) to the extent that the provisions of this Section conflict with any
other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the aggregate unpaid principal amount of
any Class of Certificates, such direction or consent may be given by Certificate
Owners (acting through the Depository and the Depository Participants) owning
Book-Entry Certificates evidencing the requisite percentage of principal amount
of such Class of Certificates.
Section 5.07 Notices to Depository. Whenever any notice or other
communication is required to be given to Certificateholders of the Class with
respect to which Book-Entry Certificates have been issued, unless and until
Definitive Certificates shall have been issued to the related Certificate
Owners, the Securities Administrator shall give all such notices and
communications to the Depository.
Section 5.08 Definitive Certificates. If, after Book-Entry Certificates
have been issued with respect to any Certificates, (a) the Depository or the
Depositor advises the Securities
-101-
Administrator that the Depository is no longer willing, qualified or able to
discharge properly its responsibilities under the Depository Agreement with
respect to such Certificates and the Securities Administrator or the Depositor
is unable to locate a qualified successor, (b) the Depositor notifies the
Securities Administrator and the Depository of its intent to terminate the
book-entry system through the Depository and, upon receipt of notice of such
intent from the Depository, the Certificate Owners of the Book-Entry
Certificates agree to initiate such termination or (c) after the occurrence and
continuation of an Event of Default, Certificate Owners of such Book-Entry
Certificates having not less than 51% of the Voting Rights evidenced by any
Class of Book-Entry Certificates advise the Securities Administrator and the
Depository in writing through the Depository Participants that the continuation
of a book-entry system with respect to Certificates of such Class through the
Depository (or its successor) is no longer in the best interests of the
Certificate Owners of such Class, then the Securities Administrator shall notify
all Certificate Owners of such Book-Entry Certificates and the NIMs Insurer,
through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners of such Class
requesting the same. The Depositor shall provide the Securities Administrator
with an adequate inventory of certificates to facilitate the issuance and
transfer of Definitive Certificates. Upon surrender to the Securities
Administrator of any such Certificates by the Depository, accompanied by
registration instructions from the Depository for registration, the Securities
Administrator shall authenticate and deliver such Definitive Certificates.
Neither the Depositor nor the Securities Administrator shall be liable for any
delay in delivery of such instructions and each may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of such
Definitive Certificates, all references herein to obligations imposed upon or to
be performed by the Depository shall be deemed to be imposed upon and performed
by the Securities Administrator, to the extent applicable with respect to such
Definitive Certificates and the Securities Administrator shall recognize the
Holders of such Definitive Certificates as Certificateholders hereunder.
Section 5.09 Maintenance of Office or Agency. The Securities Administrator
will maintain or cause to be maintained at its expense an office or offices or
agency or agencies where Certificates may be surrendered for registration of
transfer or exchange. The Securities Administrator initially designates its
offices at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Client Service Manager - Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-OAR3 as offices for such purposes. The Securities Administrator will
give prompt written notice to the Certificateholders of any change in such
location of any such office or agency. For the avoidance of doubt, the
Securities Administrator may satisfy the requirements of this Section 5.09 by
maintaining a single office or agency.
ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
Section 6.01 Distributions on the Certificates.
(a) [Reserved]
(b) On each Distribution Date, amounts on deposit in the Distribution
Account shall be treated for federal income tax purposes as applied to
distributions on the interests in each of the SWAP REMIC and the Lower Tier
REMIC in an amount sufficient to make the
-102-
distributions on the respective Certificates on such Distribution Date in
accordance with the provisions of this Section 6.01.
On each Distribution Date, the interest distributable with respect to each
class of Certificates is the interest which has accrued thereon at the then
applicable related Pass-Through Rate during the related Accrual Period less
applicable related Prepayment Interest Shortfalls and Deferred Interest, if any,
allocated to that class.
All calculations of interest on the Certificates will be made on the basis
of a 360-day year and the actual number of days elapsed in the applicable
Accrual Period.
(c) On each Distribution Date (or on the related Swap Payment Date, with
respect to payments to the Supplemental Interest Trust), the Interest Funds for
such Distribution Date are required to be distributed in the following order of
priority, until such Interest Funds have been fully distributed:
(i) to the Class P Certificates, any Prepayment Charges collected on
the Prepayment Charge Mortgage Loans and (A) any amounts paid by the
Sponsor or the applicable Servicer in respect of Prepayment Charges
pursuant to this Agreement and (B) any amounts received in respect of any
indemnification paid as a result of a Prepayment Charge being unenforceable
in breach of the representations and warranties set forth in the Mortgage
Loan Purchase Agreement received during the related Prepayment Period;
(ii) to the Supplemental Interest Trust, any Net Swap Payments owed to
the Swap Counterparty;
(iii) to the Supplemental Interest Trust, any Swap Termination Payment
owed by the Supplemental Interest Trust to the Swap Counterparty (other
than any Defaulted Swap Termination Payment);
(iv) to the Final Maturity Reserve Account, any amounts payable and
required to be deposited therein;
(v) concurrently, to each class of the Senior Certificates, the
Current Interest and any Interest Carry Forward Amount with respect to each
such class; provided, however, that if Interest Funds are insufficient to
make a full distribution of the aggregate Current Interest and the
aggregate Interest Carry Forward Amount to the Senior Certificates,
Interest Funds will be distributed pro rata among each class of the Senior
Certificates based upon the ratio of (x) the Current Interest and Interest
Carry Forward Amount for each class of the Senior Certificates to (y) the
total amount of Current Interest and any Interest Carry Forward Amount for
the Senior Certificates in the aggregate;
(vi) to the Class M-1 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
-103-
(vii) to the Class M-2 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
(viii) to the Class M-3 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
(ix) to the Class M-4 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
(x) to the Class M-5 Certificates, the Current Interest for such class
and any Interest Carry Forward Amount with respect to such class;
(xi) to the Class M-6 Certificates, the Current Interest for such
class and any Interest Carry Forward Amount with respect to such class;
(xii) to the Class B-1 Certificates, the Current Interest for each
such class and any Interest Carry Forward Amount with respect to each such
class;
(xiii) to the Class B-2 Certificates, the Current Interest for each
such class and any Interest Carry Forward Amount with respect to each such
class;
(xiv) to the Class B-3 Certificates, the Current Interest for each
such class and any Interest Carry Forward Amount with respect to each such
class; and
(xv) any remainder pursuant to Section 6.01(g) hereof.
With respect to any Distribution Date, to the extent that the Prepayment
Interest Shortfall exceeds the Compensating Interest Payment payable by the
Servicers or the Master Servicer, such amount shall reduce the Current Interest
with respect to each Class of Certificates, pro rata, based upon the amount of
interest each such Class would otherwise be entitled to receive on such
Distribution Date.
Any interest shortfall resulting from Deferred Interest on the Mortgage
Loans will be allocated to the Offered Certificates pro rata based upon the
current Certificate Principal Balance of each such class, up to the Current
Interest accrued on such class of Certificates, in reduction of the amount of
interest otherwise distributable to such class of Certificates; provided,
however, that to the extent the amount of Net Negative Amortization otherwise
allocable to a class of Offered Certificates exceeds the amount of Current
Interest accrued on the Corresponding REMIC Regular Interest of such class of
Certificates (as reduced by such class's share of any Prepayment Interest
Shortfalls for such Distribution Date), then such excess Net Negative
Amortization shall be allocated, first, to the Class C Certificates, to the
extent payments would otherwise be made to the Class C Certificates in respect
of the Uncertificated Class C Interest on such Distribution Date, and, second,
to the Offered Certificates pro rata based upon and up to the amount of any
remaining Current Interest otherwise accrued on the Corresponding REMIC Regular
Interest of each class of Offered Certificates. The amount of the reduction of
Current Interest distributable to each class of Certificates attributable to Net
Negative Amortization will be added to the Certificate Principal Balance of that
class.
(d) [RESERVED]
-104-
(e) On each Distribution Date (or on the related Swap Payment Date, with
respect to payments to the Supplemental Interest Trust), the Securities
Administrator shall, to the extent of funds then available, make the following
distributions from the Distribution Account of an amount equal to the Principal
Distribution Amount in the following order of priority, and each such
distribution shall be made only after all distributions pursuant to Section
6.01(c) above shall have been made until such amount shall have been fully
distributed for such Distribution Date:
(i) to the Supplemental Interest Trust, any Net Swap Payments owed to
the Swap Counterparty, to the extent not paid pursuant to Section
6.01(c)(ii);
(ii) to the Supplemental Interest Trust, any Swap Termination Payment
owed by the Supplemental Interest Trust to the Swap Counterparty (other
than any Defaulted Swap Termination Payment), to the extent not paid
pursuant to Section 6.01(c)(iii);
(iii) to the Final Maturity Reserve Account, any amounts payable and
required to be deposited therein to the extent not paid pursuant to Section
6.01(c)(iv);
(iv) to the Senior Certificates, the Senior Principal Distribution
Amount as follows: first, to the Class R Certificate until its Certificate
Principal Balance has been reduced to zero, and second, pro rata to the
Class A-1 Certificates, Class A-2 Certificates and Class A-3 Certificates
until the Certificate Principal Balance of each such Class has been reduced
to zero;
(v) to the Class M-1 Certificates, the Class M-1 Principal
Distribution Amount;
(vi) to the Class M-2 Certificates, the Class M-2 Principal
Distribution Amount;
(vii) to the Class M-3 Certificates, the Class M-3 Principal
Distribution Amount;
(viii) to the Class M-4 Certificates, the Class M-4 Principal
Distribution Amount;
(ix) to the Class M-5 Certificates, the Class M-5 Principal
Distribution Amount;
(x) to the Class M-6 Certificates, the Class M-6 Principal
Distribution Amount;
(xi) to the Class B-1 Certificates, the Class B-1 Principal
Distribution Amount;
(xii) to the Class B-2 Certificates, the Class B-2 Principal
Distribution Amount;
-105-
(xiii) to the Class B-3 Certificates, the Class B-3 Principal
Distribution Amount; and
(xiv) any remainder pursuant to Section 6.01(g) hereof.
(f) [RESERVED]
(g) On each Distribution Date (or on the related Swap Payment Date, with
respect to payments to the Supplemental Interest Trust), the Securities
Administrator shall, to the extent of Interest Funds and Principal Funds then
available, make the following distributions up to the following amounts from the
Distribution Account of the remainders pursuant to Section 6.01(c)(xv) and
(e)(xiv) hereof and each such distribution shall be made only after all
distributions pursuant to Sections 6.01(c) and (e) above shall have been made
until such remainders shall have been fully distributed for such Distribution
Date:
(i) to the Senior Certificates, any amounts due as described in the
same order of priority as set forth in Section 6.01(c)(v) to the extent
unpaid by Interest Funds;
(ii) to the Subordinate Certificates, any amounts due as described in
the same order of priority as set forth in Section 6.01(c)(vi) through
(xiv) to the extent unpaid by Interest Funds;
(iii) the Extra Principal Distribution Amount;
(iv) to the Class A-1 Certificates, any Unpaid Realized Loss Amount
for such class;
(v) to the Class A-2 Certificates, any Unpaid Realized Loss Amount for
such class;
(vi) to the Class A-3 Certificates, any Unpaid Realized Loss Amount
for such class;
(vii) to the Class M-1 Certificates, any Unpaid Realized Loss Amount
for such class;
(viii) to the Class M-2 Certificates, any Unpaid Realized Loss Amount
for such class;
(ix) to the Class M-3 Certificates, any Unpaid Realized Loss Amount
for such class;
(x) to the Class M-4 Certificates, any Unpaid Realized Loss Amount for
such class;
(xi) to the Class M-5 Certificates, any Unpaid Realized Loss Amount
for such class;
-106-
(xii) to the Class M-6 Certificates, any Unpaid Realized Loss Amount
for such class;
(xiii) to the Class B-1 Certificates, any Unpaid Realized Loss Amount
for such class;
(xiv) to the Class B-2 Certificates, any Unpaid Realized Loss Amount
for such class;
(xv) to the Class B-3 Certificates, any Unpaid Realized Loss Amount
for such class;
(xvi) to the Offered Certificates, on a pro rata basis, based upon
outstanding Floating Rate Certificate Carryover for each such Class, the
Floating Rate Certificate Carryover for each such Class;
(xvii) to the Supplemental Interest Trust, any Defaulted Swap
Termination Payment to the extent not already paid; and
(xviii) the remainder pursuant to Section 6.01(h) hereof.
(h) on each Distribution Date, the Securities Administrator shall allocate
the remainders pursuant to Section 6.01(g)(xviii) as follows:
(i) to the Class C Certificates in the following order of priority,
(I) the Class C Current Interest, (II) the Class C Interest Carry Forward
Amount, (III) as principal on the Class C Certificate until the Certificate
Principal Balance of the Class C Certificates has been reduced to zero and
(IV) the Class C Unpaid Realized Loss Amount; and
(ii) the remainder pursuant to Section 6.01(i) hereof.
(i) On each Distribution Date, the Securities Administrator shall allocate
the remainder pursuant to Section 6.01(h)(ii) hereof (i) to the Securities
Administrator to reimburse amounts or pay indemnification amounts owing to the
Securities Administrator from the Issuing Entity pursuant to Section 7.03 and
(ii) to the Class R Certificate and such distributions shall be made only after
all preceding distributions shall have been made until such remainder shall have
been fully distributed.
(j) On each Distribution Date, after giving effect to distributions on such
Distribution Date, the Securities Administrator shall allocate the Realized Loss
Amount for the Certificates to reduce the Certificate Principal Balances of the
Class C Certificates and the Certificates in the following order of priority:
(i) to the Class C Certificates, until the Class C Certificate
Principal Balance is reduced to zero;
(ii) to the Class B-3 Certificates until the Class B-3 Certificate
Principal Balance is reduced to zero;
-107-
(iii) to the Class B-2 Certificates until the Class B-2 Certificate
Principal Balance is reduced to zero;
(iv) to the Class B-1 Certificates until the Class B-1 Certificate
Principal Balance is reduced to zero;
(v) to the Class M-6 Certificates until the Class M-6 Certificate
Principal Balance is reduced to zero;
(vi) to the Class M-5 Certificates until the Class M-5 Certificate
Principal Balance is reduced to zero;
(vii) to the Class M-4 Certificates until the Class M-4 Certificate
Principal Balance is reduced to zero;
(viii) to the Class M-3 Certificates until the Class M-3 Certificate
Principal Balance is reduced to zero;
(ix) to the Class M-2 Certificates until the Class M-2 Certificate
Principal Balance is reduced to zero;
(x) to the Class M-1 Certificates until the Class M-1 Certificate
Principal Balance is reduced to zero;
(xi) to the Class A-3 Certificates until the Class A-3 Certificate
Principal Balance is reduced to zero;
(xii) to the Class A-2 Certificates until the Class A-2 Certificate
Principal Balance is reduced to zero; and
(xiii) to the Class A-1 Certificates until the Class A-1 Certificate
Principal Balance is reduced to zero.
(k) Subject to Section 10.02 hereof respecting the final distribution, on
each Distribution Date the Securities Administrator shall make distributions to
each Certificateholder of record on the preceding Record Date either by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if such Holder has so
notified the Securities Administrator at least five (5) Business Days prior to
the related Record Date or, if not, by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register. Notwithstanding the foregoing, but subject to Section 10.02 hereof
respecting the final distribution, distributions with respect to Certificates
registered in the name of a Depository shall be made to such Depository in
immediately available funds.
In accordance with this Agreement, the Master Servicer shall prepare and
deliver an electronic report (the "Remittance Report") to the Securities
Administrator (or by such other means as the Master Servicer and the Securities
Administrator may agree from time to time) containing such data and information
as to permit the Securities Administrator to prepare the Monthly Statement to
Certificateholders and make the required distributions for the related
-108-
Distribution Date. The Securities Administrator will prepare the Monthly Report
based solely upon the information received from the Master Servicer, which in
turn shall be based on information from the Servicers and the Cap Contract
Counterparty.
(l) The Securities Administrator is hereby directed by the Depositor to
execute the Corridor Contract on behalf of the Issuing Entity in the form
presented to it by the Depositor and shall have no responsibility for the
contents of such Corridor Contract, including, without limitation, the
representations and warranties contained therein. Any funds payable by the
Issuing Entity under the Corridor Contract at closing shall be paid by the
Depositor. Notwithstanding anything to the contrary contained herein or in the
Corridor Contract, except as set forth in Section 2 of the Corridor Contract,
the Issuing Entity shall not be required to make any payments to the
counterparty under the Corridor Contract. Any payments received under the terms
of the Corridor Contract will be available to pay the holders of the
Certificates up to the amount of any Floating Rate Certificate Carryovers
remaining after all other distributions required under this Section 6.01 are
made on such Distribution Date. Any amounts received under the terms of the
Corridor Contract on a Distribution Date that are not used to pay such Floating
Rate Certificate Carryovers will be distributed to the holders of the Class C
Certificates. Payments in respect of such Floating Rate Certificate Carryovers
from proceeds of the Corridor Contract shall be paid to the Certificates, pro
rata based upon such Floating Rate Certificate Carryovers for each such class of
Certificates. Amounts received on the Corridor Contract will be available to
make payments on the Offered Certificates.
(i) The Securities Administrator shall establish and maintain, for the
benefit of the Issuing Entity and the Certificateholders, the Corridor
Contract Account. On or prior to the Corridor Contract Termination Date,
amounts, if any, received by the Securities Administrator for the benefit
of the Trust Fund in respect of the Corridor Contract shall be deposited by
the Securities Administrator into the Corridor Contract Account and will be
used to pay Floating Rate Certificate Carryovers on the Certificates to the
extent provided in the immediately preceding paragraph. With respect to any
Distribution Date on or prior to the Corridor Contract Termination Date,
the amount, if any, payable by the Cap Contract Counterparty under the
Corridor Contract will equal the product of (i) the excess of (x) One-Month
LIBOR (as determined by the Cap Contract Counterparty and subject to a cap
equal to the rate with respect to such Distribution Date as shown under the
heading "1ML Upper Collar" in the schedule to the Corridor Contract), over
(y) the rate with respect to such Distribution Date as shown under the
heading "1ML Strike Lower Collar" in the schedule to the Corridor Contract,
(ii) an amount equal to the lesser of (x) the Corridor Contract Notional
Balance for such Distribution Date and (y) the outstanding Certificate
Principal Balance of the related classes of Certificates and (iii) the
number of days in such Accrual Period, divided by 360. If a payment is made
to the Issuing Entity under the Corridor Contract and the Securities
Administrator is required to distribute excess amounts to the holders of
the Class C Certificates as described above, information regarding such
distribution will be included in the monthly statement made available on
the Securities Administrator's website pursuant to Section 6.03 hereof.
-109-
(ii) Amounts on deposit in the Corridor Contract Account will remain
uninvested pending distribution to Certificateholders.
(iii) The Corridor Contract is scheduled to remain in effect until the
Corridor Contract Termination Date and will be subject to early termination
only in limited circumstances. Such circumstances include certain
insolvency or bankruptcy events in relation to the Cap Contract
Counterparty, the termination of the Trust Fund, the Corridor Contract
becoming illegal or subject to certain kinds of taxation and certain other
events of default and termination events (as further detailed in the
Corridor Contract).
(m) On the Closing Date, the Supplemental Interest Trust shall be
established and maintained pursuant to this Agreement, as a separate trust, the
corpus of which shall be held by the Supplemental Interest Trust Trustee for the
benefit of the holders of the Certificates as a segregated subtrust of the Trust
Fund. The Supplemental Interest Trust shall hold the Swap Account, which shall
be an Eligible Account, and funds deposited therein shall be held separate and
apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Securities Administrator or the
Supplemental Interest Trust Trustee held pursuant to this Agreement. In no event
shall any funds deposited in the Supplemental Interest Trust be credited to or
made available to any other Account of the Trust Fund. The records of the
Securities Administrator shall at all times reflect that the Supplemental
Interest Trust is a subtrust of the Trust Fund, the assets of which are
segregated from other assets of the Trust Fund.
The Supplemental Interest Trust Trustee is hereby directed by the Depositor
to execute the Swap Agreement on behalf of the Supplemental Interest Trust in
the form presented to it by the Depositor and shall have no responsibility for
the contents of such Swap Agreement, including, without limitation, the
representations and warranties contained therein. The Supplemental Interest
Trust Trustee shall have all of the rights and protections of the Securities
Administrator hereunder.
The Supplemental Interest Trust Trustee shall enforce all of the rights of
the Supplemental Interest Trust and exercise any remedies under the Swap
Agreement and, in the event the Swap Agreement is terminated as a result of the
designation by either party thereto of an Early Termination Date (as defined in
the Swap Agreement), at the direction of the Depositor, enter into a replacement
swap agreement with a replacement counterparty appointed by the Depositor
utilizing the amounts of the net Swap Termination Payments received.
For each Distribution Date, through and including the Distribution Date in
February 2013, the Supplemental Interest Trust Trustee or Securities
Administrator, as applicable, shall, based on the Significance Estimate (which
shall be provided to the Supplemental Interest Trust Trustee by the Depositor
within five (5) Business Days prior to the Distribution Date), calculate the
Significance Percentage of each of the Swap Agreement and the Corridor Contract.
If on any such Distribution Date, the Significance Percentage is equal to or
greater than 9%, the Supplemental Interest Trust Trustee or Securities
Administrator, as applicable, shall promptly notify the Depositor and the
Depositor shall obtain the financial information required to be delivered by the
Swap Counterparty or the Cap Contract Counterparty, as applicable, pursuant to
the terms of the Swap Agreement or the Corridor Contract, respectively. If, on
any succeeding
-110-
Distribution Date through and including the Distribution Date in February 2013,
the Significance Percentage is equal to or greater than 10%, the Supplemental
Interest Trust Trustee or Securities Administrator, as applicable, shall
promptly notify the Depositor and the Depositor shall, within five (5) Business
Days following such Distribution Date, deliver to the Securities Administrator
the financial information provided to it by the Swap Counterparty or Cap
Contract Counterparty, as applicable, in Xxxxx-compatible format for inclusion
in the Form 10-D relating to such Distribution Date.
Any Swap Termination Payment received by the Supplemental Interest Trust
Trustee shall be deposited in the Swap Account and shall be used to make any
upfront payment required under a replacement swap agreement and any upfront
payment received from the counterparty to a replacement swap agreement shall be
used to pay any Swap Termination Payment owed to the Swap Counterparty.
Notwithstanding anything contained herein, in the event that a replacement
swap agreement cannot be obtained within thirty (30) days after receipt by the
Supplemental Interest Trust Trustee of the Swap Termination Payment paid by the
terminated Swap Counterparty, the Supplemental Interest Trust Trustee shall
deposit such Swap Termination Payment into a separate, segregated non-interest
bearing account established by the Supplemental Interest Trust Trustee and the
Supplemental Interest Trust Trustee shall, on each Distribution Date following
receipt of such Swap Termination Payment, withdraw from such account, an amount
equal to the Net Swap Payment, if any, that would have been paid to the
Supplemental Interest Trust by the original Swap Counterparty (computed in
accordance with the original Swap Agreement) and distribute such amount in
accordance with Section 6.01(m)(i)-(viii) of this Agreement. Any such account
shall not be an asset of any REMIC. Any amounts remaining in such account shall
be distributed to the holders of the Class C Certificates on the Distribution
Date following the earlier of (i) the termination of the Trust Fund pursuant to
Section 10.01 and (ii) February 25, 2013.
On any Distribution Date (or in the case of any Net Swap Payments, on the
related Swap Payment Date), any Swap Termination Payments or Net Swap Payments
owed to the Swap Counterparty will be paid out of and any Net Swap Payments or
Swap Termination Payments received from the Swap Counterparty will be deposited
into the Swap Account. The Supplemental Interest Trust will not be an asset of
any REMIC. Funds in the Swap Account within the Supplemental Interest Trust
shall be distributed in the following order of priority by the Securities
Administrator :
(i) to the Swap Counterparty, all Net Swap Payments, if any, owed to
the Swap Counterparty for such Distribution Date;
(ii) to the Swap Counterparty, any Swap Termination Payment, other
than a Defaulted Swap Termination Payment, if any, owed to the Swap
Counterparty;
(iii) to each class of the Senior Certificates, on a pro rata basis,
any Current Interest and any Interest Carry Forward Amount with respect to
such class to the extent unpaid;
-111-
(iv) sequentially, to the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates, the
Class M-5 Certificates, the Class M-6 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3 Certificates in
that order, any Current Interest for such class to the extent unpaid;
(v) sequentially, to the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates, the
Class M-5 Certificates, the Class M-6 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3 Certificates in
that order, any Interest Carry Forward with respect to such class to the
extent unpaid;
(vi) to the Offered Certificates, to pay principal as described and in
the same manner and order of priority as set forth in Sections 6.01(e)(iv)
through 6.01(e)(xiii) in order to restore levels of the
Overcollateralization Amount, and after giving effect to distributions from
Principal Distribution Amount for each such Class;
(vii) sequentially, to the Class X-0, Xxxxx X-0, Class A-3, Class M-1
Certificates, the Class M-2 Certificates, the Class M-3 Certificates, the
Class M-4 Certificates, the Class M-5 Certificates, the Class M-6
Certificates, the Class B-1 Certificates, the Class B-2 Certificates and
the Class B-3 Certificates, in that order, any Unpaid Realized Loss Amount
for such class to the extent unpaid;
(viii) to the Offered Certificates, on a pro rata basis, any Floating
Rate Certificate Carryover to the extent not paid based on the amount of
such unpaid Floating Rate Certificate Carryover;
(ix) to the Swap Counterparty, any Defaulted Swap Termination Payment
owed to the Swap Counterparty to the extent not already paid; and
(x) to the Class C Certificates any remaining amount.
Notwithstanding the foregoing, however, after giving effect to proposed
distributions on any Distribution Date, the sum of the cumulative amounts
distributed pursuant to clause (vi) above and the cumulative amounts distributed
pursuant to clause (vii) above shall be limited to the aggregate amount of
cumulative Realized Losses incurred from the Cut-off Date through the last day
of the related Prepayment Period.
Upon termination of the Trust Fund, any amounts remaining in the Swap
Account within the Supplemental Interest Trust shall be distributed pursuant to
the priorities set forth in this Section 6.01(m).
With respect to the failure of the Swap Counterparty to perform any of its
obligations under the Swap Agreement, the breach by the Swap Counterparty of any
of its representations and warranties made pursuant to the Swap Agreement, or
the termination of the Swap Agreement, the Supplemental Interest Trust Trustee
shall send any notices and make any
-112-
demands required hereunder (to the extent that a Responsible Officer of the
Securities Administrator has actual knowledge or written notice of any such
failure, breach or termination).
On the Closing Date, the Swap Counterparty and the Supplemental Interest
Trust Trustee (which is hereby authorized and directed by the Depositor to enter
into such credit support annex) will enter into a credit support annex in
relation to the Swap Agreement, which annex is intended to protect the
Supplemental Interest Trust from certain ratings downgrades that might hinder
the ability of the Swap Counterparty to continue its obligations under the Swap
Agreement.
Pursuant to and in accordance with the terms and provisions of the Swap
Agreement, the Swap Counterparty may be required to post additional collateral
in connection with its obligations under the Swap Agreement. In connection with
the foregoing, the Supplemental Interest Trust Trustee may be required to
establish a Swap Posted Collateral Account.
To the extent that the Swap Counterparty remits any Posted Collateral to
the Supplemental Interest Trust Trustee under the Swap Agreement, the
Supplemental Interest Trust Trustee shall, upon receipt of the Posted
Collateral, deposit the Posted Collateral into the Swap Posted Collateral
Account and shall hold, release and disburse such collateral in accordance with
the terms and provisions of the Swap Agreement. Where a termination event occurs
with respect to the Swap Counterparty under the Swap Agreement, or where the
Swap Counterparty fulfills certain obligations to the Supplemental Interest
Trust such as finding a replacement swap counterparty or a guarantor that meets
established criteria of the Rating Agencies, the Supplemental Interest Trust
Trustee shall make payments from the Swap Posted Collateral Account in
accordance with the provisions of the Swap Agreement. Amounts held in the Swap
Posted Collateral Account will not be part of the Trust Fund and will not be
available for distribution to any Certificateholders, except to the extent
distributed to the Swap Account pursuant to the Swap Agreement. Any funds in the
form of cash held in the Swap Posted Collateral Account shall be invested by the
Supplemental Interest Trust Trustee in Permitted Investments described in clause
(ii) of the definition of Permitted Investments in accordance with the
instructions of the Swap Counterparty. Any earnings shall be remitted to the
Swap Counterparty in accordance with the Swap Agreement. Absent receipt by the
Supplemental Interest Trust Trustee of written instructions from the Swap
Counterparty, such funds shall remain uninvested.
(n) On each Distribution Date on or after the Distribution Date in July
2017 up to and including the Final Scheduled Distribution Date, if the 40-Year
Mortgage Loans have an aggregate Stated Principal Balance greater than the
scheduled amount for such Distribution Date set forth in the table attached
hereto as Exhibit I, the Securities Administrator will be required to deposit,
from interest collections prior to the distribution to the Certificates, into
the Final Maturity Reserve Account on each such Distribution Date, an amount
equal to the product of (a) one-twelfth, (b) the Final Maturity Reserve Rate and
(b) the aggregate Stated Principal Balance of the 40-Year Mortgage Loans, prior
to the distribution of Interest Funds and Principal Funds on the Offered
Certificates for such Distribution Date.
On the earlier of the Final Scheduled Distribution Date and the termination
of the Issuing Entity, any amounts on deposit in the Final Maturity Reserve
Account will be distributed in the following order of priority:
-113-
(i) concurrently, to the Senior Certificates, in reduction of their
respective Certificate Principal Balances, pro rata, based on their
Certificate Principal Balances, until their respective Certificate
Principal Balances have been reduced to zero;
(ii) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class B-1, Class B-2 and Class B-3 Certificates, in
reduction of their respective Certificate Principal Balances, until the
Certificate Principal Balance of the each such Class has been reduced to
zero;
(iii) to the Class X-0, Xxxxx X-0, Class A-3 and Class R Certificates,
any amounts due as described in the same order of priority as set forth in
Section 6.01(c)(v) to the extent unpaid from Interest Funds;
(iv) to the Subordinate Certificates, any amounts due as described in
the same order of priority as set forth in Section 6.01(c)(vi)-(xiv) to the
extent unpaid from Interest Funds;
(v) to the Offered Certificates, on a pro rata basis, any Floating
Rate Certificate Carryover to the extent not paid from Interest Funds or
Principal Funds based on the amount of such unpaid Floating Rate
Certificate Carryover;
(vi) to the Swap Counterparty, any Defaulted Swap Termination Payment
owed to the Swap Counterparty; and
(vii) to the holders of the Class C Certificates, any remaining
amounts.
For federal income tax purposes, the Final Maturity Reserve Account shall
be an "outside reserve fund" within the meaning of Treasury regulation
1.860G-2(h) and not an asset of any REMIC created pursuant to this Agreement,
and the Class C Certificates shall evidence ownership of the Final Maturity
Reserve Account and shall be taxable on all income earned thereon. For federal
income tax purposes, any Certificateholder that receives a principal payment
from the Final Maturity Reserve Account shall be treated as selling a portion of
its Certificate to the Class C Certificateholder and as having received the
amount of the principal payment from the Class C Certificateholder as the
proceeds of the sale. The portion of the Certificate that is treated as having
been sold shall equal the amount of the corresponding reduction in the
Certificate Principal Balance of such Certificate. Principal payments received
from the Final Maturity Reserve Account shall not be treated as distributions
from any REMIC created hereby. All principal distributions from the Final
Maturity Reserve Account shall be accounted for hereunder in accordance with
this Section 6.01(n). In furtherance of the foregoing, distributions and
allocations shall continue to be made with respect to the REMIC regular interest
represented by the portion of any Certificate that is treated as having been
sold to the Class C Certificateholder as if such portion was still outstanding
and held by the Class C Certificateholder, provided that the rights of the Class
C Certificateholder to any such distributions shall subordinated to the rights
of any other Certificateholder (other than the Holder of the Residual
Certificates) to receive distributions.
-114-
Section 6.02 Distributions.
(a) On each Distribution Date, other than the final Distribution Date, the
Securities Administrator shall distribute to each Certificateholder of record on
the directly preceding Record Date the Certificateholder's pro rata share of its
Class (based on the aggregate Percentage Interest represented by such Holder's
Certificates) of all amounts required to be distributed on such Distribution
Date to such Class, based solely on information provided to the Securities
Administrator by the Master Servicer. The Securities Administrator shall
calculate the amount to be distributed to each Class and, based on such amounts,
the Securities Administrator shall determine the amount to be distributed to
each Certificateholder. All of the Securities Administrator's calculations of
payments shall be based solely on information provided to the Securities
Administrator by the Master Servicer or the applicable Servicer. The Securities
Administrator shall not be required to confirm, verify or recompute any such
information but shall be entitled to rely conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall be made
(i) by check mailed to each Certificateholder entitled thereto at the address
appearing in the Certificate Register or (ii) upon receipt by the Securities
Administrator on or before the fifth Business Day preceding the Record Date of
written instructions from a Certificateholder by wire transfer to a United
States dollar account maintained by the payee at any United States depository
institution with appropriate facilities for receiving such a wire transfer;
provided, however, that the final payment in respect of each Class of
Certificates will be made only upon presentation and surrender of such
respective Certificates at the office or agency of the Securities Administrator
specified in the notice to Certificateholders of such final payment.
Section 6.03 Statements to Certificateholders.
(a) On each Distribution Date, the Securities Administrator will make
available to each Certificateholder, the Servicers, the Depositor, the NIMS
Insurer (if any) and any other interested party a statement (the "Monthly
Statement"), based in part on information provided by the Master Servicer and
the Servicers generally setting forth among other information with respect to
the Certificates and Mortgage Loans:
(1) the amount of the related distribution to holders of each class of
certificates allocable to principal, separately identifying (A) the
aggregate amount of any principal prepayments included therein, (B)
the aggregate amount of all scheduled payments of principal included
therein and (C) any Extra Principal Distribution Amount;
(2) the amount of such distribution to holders of each class of
Certificates allocable to interest;
(3) the Interest Carry Forward Amount for each class of Certificates;
(4) the Certificate Principal Balance of each class of Certificates after
giving effect to the distribution of principal on such Distribution
Date;
-115-
(5) the aggregate outstanding principal balance of each class of
Certificates for the following Distribution Date;
(6) the amount of the Servicing Fee paid to or retained by the Servicers
and any amounts constituting reimbursement or indemnification of the
Servicers, the Master Servicer, the Trustee or the Securities
Administrator;
(7) the Pass-Through Rate for each class of Certificates for such
Distribution Date;
(8) the amount of Advances on Mortgage Loans included in the distribution
on such Distribution Date;
(9) the cumulative amount of (A) Realized Losses and (B) Applied Realized
Loss Amounts to date;
(10) the amount of (A) Realized Losses and (B) Applied Realized Loss
Amounts with respect to such Distribution Date;
(11) the number and aggregate principal amounts of Mortgage Loans (A)
delinquent (exclusive of Mortgage Loans in foreclosure) (1) 30 to 59
days, (2) 60 to 89 days and (3) 90 or more days, and (B) in
foreclosure and delinquent (1) 30 to 59 days, (2) 60 to 89 days and
(3) 90 or more days, in each case as of the close of business on the
last day of the calendar month preceding such Distribution Date, with
respect to each group of Mortgage Loans and in accordance with the MBA
methodology for measuring delinquencies;
(12) with respect to any Mortgage Loan that became an REO Property during
the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Determination Date, in the aggregate;
(13) whether a Stepdown Trigger Event has occurred and is in effect;
(14) the total number and principal balance of any REO Properties as of the
close of business on the related Determination Date, in the aggregate;
(15) any Floating Rate Certificate Carryover paid and all Floating Rate
Certificate Carryover remaining on each class of the Certificates on
such Distribution Date;
(16) the number and amount of Prepayment Charges applicable to the related
Prepayment Period in the aggregate;
(17) as of each Distribution Date, the amount, if any, deposited into the
Final Maturity Reserve Account;
(18) as of each Distribution Date, the amount, if any, received pursuant to
each Corridor Contract and the amount thereof to be paid to each class
of Certificates;
(19) [Reserved];
-116-
(20) as of each Distribution Date, the amount of any Net Swap Payments or
Swap Termination Payments paid or received by the Supplemental
Interest Trust pursuant to the Swap Agreement and the amount of any
Defaulted Swap Termination Payments paid by the Supplemental Interest
Trust;
(21) the number of Mortgage Loans with respect to which (i) a reduction in
the Mortgage Interest Rate has occurred or (ii) the related borrower's
obligation to repay interest on a monthly basis has been suspended or
reduced pursuant to the Relief Act; and the amount of interest not
required to be paid with respect to any such Mortgage Loans during the
related Due Period as a result of such reductions;
(22) the amounts distributed as interest in respect of the portion of each
class of Certificates that represents a regular or residual interest
in a REMIC and the amount of distributions on each class of
certificates not treated as distributions on a regular or residual
interest in a REMIC;
(23) the aggregate amount of all Advances with respect to the Mortgage
Loans recovered for such Distribution Date;
(24) the allocation to each Class of Certificates of any Realized Losses
for such Distribution Date;
(25) with respect to each Class of Certificates, the amount of any
Prepayment Interest Shortfalls for such Distribution Date; and
(26) information regarding any pool asset changes (other than in connection
with a pool asset converting into cash in accordance with its terms),
such as additions or removals in connection with pool asset
substitutions and repurchases (and purchase rates, if applicable).
The Securities Administrator may make available each month, to any
interested party, the monthly statement via the Securities Administrator's
website. The Securities Administrator will also make available on its website
any reports on Form 10-D, Form 10-K and Form 8-K that have been prepared and
filed by the Securities Administrator with respect to the Issuing Entity
promptly after such material is electronically filed with, or furnished to, the
Securities and Exchange Commission. The Securities Administrator's website will
be located at xxx.xxxxxxx.xxx, and assistance in using the website can be
obtained by calling the Securities Administrator's customer service desk at
(000) 000-0000. Parties that are unable to use the above distribution option are
entitled to have a paper copy mailed to them via first class mail by notifying
the Securities Administrator at the following address: Xxxxx Fargo Bank, N.A.,
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager --
MLMI 2007-OAR3. The Securities Administrator will have the right to change the
way such reports are distributed in order to make such distributions more
convenient and/or more accessible, and the Securities Administrator will provide
timely and adequate notification to such parties regarding any such changes.
In addition, within a reasonable period of time after the end of each
calendar year, the Securities Administrator will, upon request, prepare and
deliver to each Holder of a Certificate of
-117-
record during the previous calendar year and the NIMs Insurer, if any, upon its
written request a statement containing information necessary to enable Holders
of the Certificates to prepare their tax returns. These statements will not have
been examined and reported upon by an independent public accountant.
(b) By January 30 of each year beginning in 2008, if so requested in
writing, the Securities Administrator will furnish such report to each Holder of
the Certificates of record at any time during the prior calendar year as to the
aggregate of amounts reported pursuant to subclauses (a)(ii) and (a)(v) above
with respect to the Certificates, plus information with respect to the amount of
servicing compensation and such other customary information as the Securities
Administrator may determine to be necessary and/or to be required by the
Internal Revenue Service or by a federal or state law or rules or regulations to
enable such Holders to prepare their tax returns for such calendar year. Such
obligations shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Securities
Administrator pursuant to the requirements of the Code.
Section 6.04 Advances. If the Monthly Payment on a Mortgage Loan that was
due on a related Due Date and is Delinquent other than as a result of
application of the Relief Act and for which the applicable Servicer was required
to make an advance pursuant to this Agreement exceeds the amount deposited in
the Master Servicer Collection Account that will be used for a Advance with
respect to such Mortgage Loan, the Master Servicer will deposit in the Master
Servicer Collection Account not later than the Distribution Account Deposit Date
immediately preceding the related Distribution Date an amount equal to such
deficiency, net of the Servicing Fee for such Mortgage Loan, except to the
extent the Master Servicer determines any such Advance to be nonrecoverable from
Liquidation Proceeds, Insurance Proceeds or future payments on the Mortgage Loan
for which such Advance was made. If the Master Servicer has not deposited the
amount described above as of the related Distribution Account Deposit Date, the
Trustee will, subject to applicable law and its determination of recoverability,
deposit in the Master Servicer Collection Account not later than the related
Distribution Date, an amount equal to the remaining deficiency as of the
Distribution Account Deposit Date. Subject to the foregoing, the Master Servicer
shall continue to make such Advances through the date that the applicable
Servicer is required to do so under the Applicable Servicing Agreement. If
applicable, on the Distribution Account Deposit Date, the Master Servicer shall
present an Officer's Certificate to the Securities Administrator (i) stating
that the Master Servicer elects not to make a Advance in a stated amount and
(ii) detailing the reason it deems the advance to be nonrecoverable.
Section 6.05 Compensating Interest Payments. The Master Servicer shall
deposit in the Master Servicer Collection Account not later than each
Distribution Account Deposit Date an amount equal to the aggregate amounts
required to be paid by the Servicers under the Applicable Servicing Agreement
with respect to subclause (a) of the definition of Prepayment Interest Shortfall
with respect to the Mortgage Loans for the related Distribution Date, and not so
paid by the applicable Servicer (such amount, the "Compensating Interest
Payment"). The Master Servicer shall not be entitled to any reimbursement of any
Compensating Interest Payment; provided, however, the aggregate compensating
interest payments made by the Master Servicer shall not exceed the Master
Servicing Compensation.
-118-
ARTICLE VII
THE MASTER SERVICER AND THE DEPOSITOR
Section 7.01 Liabilities of the Master Servicer. The Master Servicer shall
be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Master Servicer, as the case may
be, herein. The Depositor shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Depositor.
Section 7.02 Merger or Consolidation of the Master Servicer.
(a) Each of the Master Servicer and the Depositor will keep in full force
and effect its existence, rights and franchises as a corporation under the laws
of the state of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its duties under this Agreement.
(b) Any Person into which the Master Servicer or the Depositor may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor of the
Master Servicer hereunder, without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 7.03 Indemnification from the Master Servicer and the Depositor.
(a) The Master Servicer agrees to indemnify the Indemnified Persons for,
and to hold them harmless against, any loss, liability or expense (including
reasonable legal fees and disbursements of counsel) incurred on their part that
may be sustained in connection with, arising out of, or relating to, any claim
or legal action (including any pending or threatened claim or legal action)
relating to this Agreement or the Certificates (i) related to the Master
Servicer's failure to perform its duties in compliance with this Agreement
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) or (ii) incurred by reason of the Master Servicer's
willful misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder, provided, in each case, that with respect to any such claim or legal
action (or pending or threatened claim or legal action), the Trustee or the
Securities Administrator shall have given the Master Servicer and the Depositor
written notice of such claim or legal action promptly after the Trustee or the
Securities Administrator shall have received knowledge thereof. This indemnity
shall survive the resignation or removal of the Trustee, Master Servicer or the
Securities Administrator and the termination of this Agreement.
(b) The Depositor will indemnify any Indemnified Person for any loss,
liability or expense of any Indemnified Person not otherwise referred to in
Section (a) above.
Section 7.04 Limitations on Liability of the Master Servicer and Others.
Subject to the obligation of the Master Servicer to indemnify the Indemnified
Persons pursuant to Section 7.03:
-119-
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Indemnified Persons, the Depositor, the Issuing Entity or the Certificateholders
for taking any action or for refraining from taking any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of such Person's willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or agent of the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder.
(c) The Master Servicer, the Servicers, the Custodian and any director,
officer, employee or agent of the Master Servicer, the Servicers or the
Custodian shall be indemnified by the Issuing Entity and held harmless thereby
against any loss, liability or expense (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or related to, any claim or legal action
(including any pending or threatened claim or legal action) relating to this
Agreement, an Applicable Servicing Agreement or the Certificates (except to the
extent that the Master Servicer or the Custodian, as the case may be, is
indemnified by another party thereunder), other than (i) any such loss,
liability or expense related to the Master Servicer's failure to perform its
duties in compliance with this Agreement (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement), or to the
Custodian's failure to perform its duties under the Custodial Agreement,
respectively, or (ii) any such loss, liability or expense incurred by reason of
the Master Servicer's, the Servicers' or the Custodian's willful misfeasance,
bad faith or gross negligence in the performance of duties hereunder or under
the Custodial Agreement, as applicable, or by reason of reckless disregard of
obligations and duties hereunder or under the Custodial Agreement, as
applicable.
(d) The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties under
this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, the Master Servicer may in its discretion,
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Issuing Entity, and the Master Servicer
shall be entitled to be reimbursed therefor out of the Master Servicer
Collection Account as provided by Section 4.03. Nothing in this Section 7.04(d)
shall affect the Master Servicer's obligation to supervise, or to take such
actions as are necessary to ensure, the servicing and administration of the
Mortgage Loans pursuant to Section 3.01(a).
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement, the
Master Servicer shall not be required to investigate or make recommendations
concerning potential liabilities which the Issuing Entity might incur as a
result of such course of action by reason of the condition of the Mortgaged
Properties but shall give notice to the Trustee if it has notice of such
potential liabilities.
-120-
(f) The Master Servicer shall not be liable for any acts or omissions of
any Servicer, except as otherwise expressly provided herein.
Section 7.05 Master Servicer Not to Resign. Except as provided in Section
7.07, the Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon a determination that any such duties hereunder
are no longer permissible under applicable law and such impermissibility cannot
be cured. Any such determination permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Independent Counsel to such effect
delivered to the Trustee and the NIMs Insurer, if any. No such resignation by
the Master Servicer shall become effective until MLML or the Trustee or a
successor to the Master Servicer reasonably satisfactory to the Trustee and the
NIMs Insurer shall have assumed the responsibilities and obligations of the
Master Servicer in accordance with Section 8.02 hereof. The Trustee shall notify
the Rating Agencies of the resignation of the Master Servicer. If the Master
Servicer and the Securities Administrator are the same entity, then at any time
the Master Servicer is terminated as master servicer, the Securities
Administrator shall likewise be removed as securities administrator.
Section 7.06 Successor Master Servicer. In connection with the appointment
of any successor Master Servicer or the assumption of the duties of the Master
Servicer, MLML or the Trustee may make such arrangements for the compensation of
such successor master servicer out of payments on the Mortgage Loans as MLML or
the Trustee and such successor master servicer shall agree. If the successor
master servicer does not agree that such market value is a fair price, such
successor master servicer shall obtain two quotations of market value from third
parties actively engaged in the servicing of single-family mortgage loans.
Notwithstanding anything herein to the contrary, in no event shall the
Trustee be liable for any Servicing Fee or Master Servicing Compensation or for
any differential in the amount of the Servicing Fee or Master Servicing
Compensation paid hereunder and the amount necessary to induce any successor
servicer or successor master servicer to act as successor servicer or successor
master servicer, as applicable, under this Agreement and the transactions set
forth or provided for herein.
Section 7.07 Sale and Assignment of Master Servicing. The Master Servicer
may sell and assign its rights and delegate its duties and obligations in its
entirety as Master Servicer under this Agreement; provided, however, that: (i)
the purchaser or transferee accepting such assignment and delegation (a) shall
be a Person which shall be qualified to service mortgage loans for Xxxxxx Xxx or
Xxxxxxx Mac; (b) shall have a net worth of not less than $10,000,000 (unless
otherwise approved by each Rating Agency pursuant to clause (ii) below); (c)
shall be reasonably satisfactory to the Trustee (as evidenced in a writing
signed by the Trustee); and (d) shall execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it as
master servicer under this Agreement, any custodial agreement from and after the
effective date of such agreement; (ii) each Rating Agency shall be given prior
written notice of the identity of the proposed successor to the Master Servicer
and each Rating Agency's rating of the Certificates in effect immediately prior
to such assignment, sale and delegation will not be downgraded, qualified or
withdrawn as a result of such assignment, sale and delegation, as evidenced by a
letter to such effect delivered to the Master Servicer and the Trustee; and
(iii) the Master Servicer
-121-
assigning and selling the master servicing shall deliver to the Trustee an
Officer's Certificate and an Opinion of Independent Counsel, each stating that
all conditions precedent to such action under this Agreement have been completed
and such action is permitted by and complies with the terms of this Agreement.
No such assignment or delegation shall affect any liability of the Master
Servicer arising prior to the effective date thereof.
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) and
only with respect to the defaulting Master Servicer:
(i) The Master Servicer fails to cause to be deposited in the
Distribution Account any amount so required to be deposited pursuant to
this Agreement, and such failure continues unremedied for a period of three
Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer; or
(ii) The Master Servicer fails to observe or perform in any material
respect any other material covenants and agreements set forth in this
Agreement to be performed by it, which covenants and agreements materially
affect the rights of Certificateholders, and such failure continues
unremedied for a period of 60 days after the date on which written notice
of such failure, properly requiring the same to be remedied, shall have
been given to the Master Servicer by the Trustee or to the Master Servicer
and the Trustee by the Holders of Certificates evidencing Percentage
Interests aggregating not less than 25% of the Trust Fund or by the NIMs
Insurer; or
(iii) There is entered against the Master Servicer a decree or order
by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order is unstayed and in
effect for a period of 60 consecutive days, or an involuntary case is
commenced against the Master Servicer under any applicable insolvency or
reorganization statute and the petition is not dismissed within 60 days
after the commencement of the case; or
(iv) The Master Servicer consents to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating
to the Master Servicer or substantially all of its property; or the Master
Servicer admits in writing its inability to pay its debts generally as they
become due, files a petition to take advantage of any applicable insolvency
or reorganization statute, makes an assignment for the benefit of its
creditors, or voluntarily suspends payment of its obligations; or
-122-
(v) The Master Servicer assigns or delegates its duties or rights
under this Agreement in contravention of the provisions permitting such
assignment or delegation under Sections 7.05 or 7.07.
(vi) Any failure by the Master Servicer to deliver any Annual
Statement of Compliance, Assessment of Compliance or Accountant's
Attestation when and as required under Section 3.16 or Section 3.17.
In each and every such case, so long as such Event of Default with respect to
the Master Servicer shall not have been remedied, either the Trustee (with the
written consent of the NIMs Insurer, except after a NIMs Insurer Default) or the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Certificate Principal Balance of the Certificates (with the
written consent of the NIMs Insurer, except after a NIMs Insurer Default), by
notice in writing to the Master Servicer (and to the Trustee if given by such
Certificateholders), with a copy to the Rating Agencies, and with the consent of
the Sponsor, may terminate all of the rights and obligations (but not the
liabilities) of the Master Servicer under this Agreement and in and to the
Mortgage Loans and/or the REO Property serviced by the Master Servicer and the
proceeds thereof. Upon the receipt by the Master Servicer of the written notice,
all authority and power of the Master Servicer under this Agreement, whether
with respect to the Certificates, the Mortgage Loans, REO Property or under any
other related agreements (but only to the extent that such other agreements
relate to the Mortgage Loans or related REO Property) shall, subject to Section
8.02, automatically and without further action pass to and be vested in the
Trustee pursuant to this Section 8.01; and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the Master
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's rights and
obligations hereunder, including, without limitation, the transfer to the
Trustee of (i) the property and amounts which are then or should be part of the
Issuing Entity or which thereafter become part of the Issuing Entity; and (ii)
originals or copies of all documents of the Master Servicer reasonably requested
by the Trustee to enable it to assume the Master Servicer's duties thereunder.
In addition to any other amounts which are then, or, notwithstanding the
termination of its activities under this Agreement, may become payable to the
Master Servicer under this Agreement, the Master Servicer shall be entitled to
receive, out of any amount received on account of a Mortgage Loan or related REO
Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall not
affect any obligations incurred by the Master Servicer prior to such
termination.
Section 8.02 Trustee to Act; Appointment of Successor.
(a) Upon the receipt by the Master Servicer of a notice of termination
pursuant to Section 8.01 or an Opinion of Independent Counsel pursuant to
Section 7.05 to the effect that the Master Servicer is legally unable to act or
to delegate its duties to a Person which is legally able to act, the Trustee
shall automatically become the successor in all respects to the Master Servicer
in its capacity under this Agreement and the transactions set forth or provided
for herein and shall
-123-
thereafter be subject to all the responsibilities, duties, liabilities and
limitations on liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof; provided, however, that MLML shall have the right
to either (a) immediately assume the duties of the Master Servicer or (b) select
a successor master servicer; provided further, however, that the Trustee shall
have no obligation whatsoever with respect to any liability (other than advances
deemed recoverable and not previously made) incurred by the Master Servicer at
or prior to the time of termination. As compensation therefor, the Trustee shall
be entitled to all funds relating to the Mortgage Loans which the Master
Servicer would have been entitled to retain if the Master Servicer had continued
to act hereunder, except for those amounts due the Master Servicer as
reimbursement permitted under this Agreement for advances previously made or
expenses previously incurred. Notwithstanding the above, or anything herein to
the contrary, the Trustee, if it becomes Master Servicer, shall have no
responsibility or obligation (i) to repurchase or substitute any Mortgage Loan,
(ii) for any representation or warranty of the Master Servicer hereunder, and
(iii) for any act or omission of either a predecessor or successor Master
Servicer other than the Trustee. The Trustee may conduct any activity required
of it as Master Servicer hereunder through an Affiliate or through an agent.
Neither the Trustee (as successor Master Servicer) nor any other successor
Master Servicer shall be deemed to be in default hereunder due to any act or
omission of a predecessor Master Servicer, including but not limited to failure
to timely deliver to the Trustee distribution instructions, any funds required
to be deposited to the Trust Fund, or any breach of its duty to cooperate with a
transfer of master servicing. Neither the Trustee nor any other successor Master
Servicer shall be deemed to be in default hereunder by reason of any failure to
make, or any delay in making, any distribution hereunder or any portion thereof
or any failure to perform, or any delay in performing, any duties or
responsibilities hereunder, in either case caused solely by the failure of the
Master Servicer to deliver or provide, or any delay in delivering or providing,
any cash, information, documents or records required to be provided to it by the
Master Servicer. Notwithstanding the above, the Trustee may, if it shall be
unwilling so to act, or shall, if it is legally unable so to act, appoint or
petition a court of competent jurisdiction to appoint, any established housing
and home finance institution which is a Xxxxxx Xxx- or Xxxxxxx Mac-approved
servicer, and with respect to a successor to the Master Servicer only, having a
net worth of not less than $10,000,000 and meeting such other standards for a
successor Master Servicer as are set forth in this Agreement, as the successor
to the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder.
Pending appointment of a successor to the Master Servicer hereunder, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans as it and
such successor shall agree; provided, however, in the event that the provisions
of Section 7.06 shall apply, no such compensation shall be in excess of that
permitted the Trustee under this Section 8.02(a), and that such successor shall
undertake and assume the obligations of the Trustee to pay compensation to any
third Person acting as an agent or independent contractor in the performance of
master servicing responsibilities hereunder. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. No appointment of a successor to the Master
Servicer hereunder shall be effective until the NIMs Insurer shall have
consented thereto and prior written consent of the NIMs Insurer is obtained
(which consent shall not be unreasonably withheld or delayed).
-124-
(b) If the Trustee shall succeed to any duties of the Master Servicer
respecting the Mortgage Loans as provided herein, it shall do so in a separate
capacity and not in its capacity as Trustee and, accordingly, the provisions of
Article IX (with the exception of the last paragraph of Section 9.01(d)) shall
be inapplicable to the Trustee in its duties as the successor to the Master
Servicer in the servicing of the Mortgage Loans (although such provisions shall
continue to apply to the Trustee in its capacity as Trustee); the provisions of
Article VII, however, shall apply to it in its capacity as successor master
servicer.
Section 8.03 Notification to Certificateholders. Upon any termination or
appointment of a successor to the Master Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register, the NIMs Insurer, if any, and to the
Rating Agencies.
Section 8.04 Waiver of Defaults. The Trustee shall transmit by mail to all
Certificateholders and the NIMs Insurer, within 60 days after the occurrence of
any Event of Default known to the Trustee, unless such Event of Default shall
have been cured, notice of each such Event of Default hereunder known to the
Trustee. The Holders of Certificates evidencing Percentage Interests aggregating
not less than 51% of the Certificate Principal Balance of the Certificates may,
on behalf of all Certificateholders, waive any default by the Master Servicer in
the performance of its obligations hereunder and the consequences thereof,
except a default in the making of or the causing to be made any required
distribution on the Certificates. Upon any such waiver of a past default, such
default shall be deemed to cease to exist, and any Event of Default arising
therefrom shall be deemed to have been timely remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
The Trustee shall give notice of any such waiver to the Rating Agencies.
Section 8.05 List of Certificateholders. Upon reasonable, prior written
request of three or more Certificateholders of record, for purposes of
communicating with other Certificateholders with respect to their rights under
this Agreement, the Trustee will afford such Certificateholders access during
business hours to the most recent list of Certificateholders held by the
Trustee.
ARTICLE IX
CONCERNING THE TRUSTEE AND
THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred, and the
Securities Administrator each undertake to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the Trustee
and the Securities Administrator, respectively. If an Event of Default has
occurred and has not been cured or waived, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and subject to Section
8.02(b) use the same degree of care and skill in their exercise, as a prudent
person would exercise under the circumstances in the conduct of his own affairs.
-125-
(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments which are specifically required
to be furnished to the Trustee and the Securities Administrator pursuant to any
provision of this Agreement, the Trustee and the Securities Administrator,
respectively, shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that neither the Trustee nor the
Securities Administrator shall be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer; provided, further, that neither the
Trustee nor the Securities Administrator shall be responsible for the accuracy
or verification of any calculation provided to it pursuant to this Agreement. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected and if the instrument is not
corrected to its satisfaction, the Trustee will provide notice thereof to the
NIMs Insurer and the Certificateholders and take such further action as directed
by the NIMs Insurer and the Certificateholders.
(c) On each Distribution Date, the Securities Administrator shall make
monthly distributions and the final distribution to the Certificateholders from
funds in the Distribution Account as provided in Sections 6.01 and 10.02 herein
based solely on the report of the Master Servicer or the Servicers.
(d) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this Agreement,
neither the Trustee nor the Securities Administrator shall be liable except
for the performance of their respective duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee or the
Securities Administrator and, in the absence of bad faith on the part of
the Trustee or the Securities Administrator, respectively, the Trustee or
the Securities Administrator, respectively, may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee or the
Securities Administrator, respectively, and conforming to the requirements
of this Agreement;
(ii) Neither the Trustee nor the Securities Administrator shall be
liable in its individual capacity for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee or an
officer of the Securities Administrator, respectively, unless it shall be
proved that the Trustee or the Securities Administrator, respectively, was
negligent in ascertaining the pertinent facts;
(iii) Neither the Trustee nor the Securities Administrator shall be
liable with respect to any action taken, suffered or omitted to be taken by
it in good faith in accordance with the directions of the NIMs Insurer or
the Holders of Certificates evidencing Percentage Interests aggregating not
less than 25% of the Certificate Principal Balance of the Certificates, if
such action or non-action relates to the time, method and
-126-
place of conducting any proceeding for any remedy available to the Trustee
or the Securities Administrator, respectively, or exercising any trust or
other power conferred upon the Trustee or the Securities Administrator,
respectively, under this Agreement;
(iv) The Trustee shall not be required to take notice or be deemed to
have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee's Corporate Trust Office shall have
actual knowledge thereof. In the absence of such notice, the Trustee may
conclusively assume there is no such default or Event of Default;
(v) The Trustee shall not in any way be liable by reason of any
insufficiency in any Account held by or in the name of Trustee unless it is
determined by a court of competent jurisdiction that the Trustee's gross
negligence or willful misconduct was the primary cause of such
insufficiency (except to the extent that the Trustee is obligor and has
defaulted thereon);
(vi) Anything in this Agreement to the contrary notwithstanding, in no
event shall the Trustee or the Securities Administrator be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trustee or the
Securities Administrator, respectively, has been advised of the likelihood
of such loss or damage and regardless of the form of action; and
(vii) None of the Securities Administrator, the Depositor, the Master
Servicer, Wilshire or the Trustee shall be responsible for the acts or
omissions of the other, it being understood that this Agreement shall not
be construed to render them partners, joint venturers or agents of one
another.
Neither the Trustee (regardless of the capacity in which it is acting) nor
the Securities Administrator shall be required to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee or the Securities Administrator to perform, or be responsible for
the manner of performance of, any of the obligations of the Master Servicer
hereunder or under the Applicable Servicing Agreements, except during such time,
if any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Master Servicer in accordance with the
terms of this Agreement.
(e) All funds received by the Master Servicer and the Securities
Administrator and required to be deposited in the Master Servicer Collection
Account or Distribution Account pursuant to this Agreement will be promptly so
deposited by the Master Servicer and the Securities Administrator.
(f) The Issuing Entity hereby authorizes and directs the Securities
Administrator to enter into the Corridor Contract on behalf of the Issuing
Entity and to perform the duties and obligations of the Issuing Entity under the
Corridor Contract and any other agreement or instrument related thereto, in each
case in such form as the Depositor shall direct or shall
-127-
approve in writing, the execution and delivery of any such agreement by the
Depositor to be conclusive evidence of its approval thereof.
(g) Except for those actions that the Trustee or the Securities
Administrator is required to take hereunder, neither the Trustee nor the
Securities Administrator shall have any obligation or liability to take any
action or to refrain from taking any action hereunder in the absence of written
direction as provided hereunder.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator. Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may rely and shall be
protected in acting or refraining from acting in reliance on any
resolution, certificate of a Depositor, Master Servicer or Servicer,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) The Trustee and the Securities Administrator may consult with
counsel and any advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection with respect to any action
taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement, other than its obligation to give notices pursuant to
this Agreement, or to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any of the
Certificateholders or the NIMs Insurer pursuant to the provisions of this
Agreement, unless such Certificateholders or NIMs Insurer shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby. Nothing
contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default of which a Responsible Officer
of the Trustee's Corporate Trust Office has actual knowledge (which has not
been cured or waived), subject to Section 8.02(b), to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise, as a prudent person would
exercise under the circumstances in the conduct of his own affairs;
(iv) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default which may have
occurred, neither the Trustee nor the Securities Administrator shall be
liable in its individual capacity for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(v) Neither the Trustee nor the Securities Administrator shall be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates
-128-
evidencing Percentage Interests aggregating not less than 25% of the
Certificate Principal Balance of the Certificates or the NIMs Insurer and
provided that the payment within a reasonable time to the Trustee or the
Securities Administrator, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee or the Securities Administrator, as
applicable, reasonably assured to the Trustee or the Securities
Administrator, as applicable, by the security afforded to it by the terms
of this Agreement. The Trustee or the Securities Administrator may require
reasonable indemnity against such expense or liability as a condition to
taking any such action. The reasonable expense of every such examination
shall be paid by the Certificateholders or the NIMs Insurer requesting the
investigation;
(vi) The Trustee and the Securities Administrator may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or through Affiliates, agents or attorneys; provided, however,
that the Trustee may not appoint any agent to perform its custodial
functions with respect to the Mortgage Files or paying agent functions
under this Agreement without the express written consent of the Securities
Administrator, which consent will not be unreasonably withheld. Neither the
Trustee nor the Securities Administrator shall be liable or responsible for
the misconduct or negligence of any of the Trustee's or the Securities
Administrator's agents or attorneys or a custodian or paying agent
appointed hereunder by the Trustee or the Securities Administrator with due
care and, when required, with the consent of the Securities Administrator;
(vii) Should the Trustee or the Securities Administrator deem the
nature of any action required on its part, other than a payment or transfer
under Section 4.01(b) or Section 4.02, to be unclear, the Trustee or the
Securities Administrator, respectively, may require prior to such action
that it be provided by the Depositor with reasonable further instructions;
(viii) The right of the Trustee or the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be accountable for other than its negligence or willful
misconduct in the performance of any such act;
(ix) Neither the Trustee nor the Securities Administrator shall be
required to give any bond or surety with respect to the execution of the
trust created hereby or the powers granted hereunder, except as provided in
Section 9.07; and
(x) Neither the Trustee nor the Securities Administrator shall have
any duty to conduct any affirmative investigation as to the occurrence of
any condition requiring the repurchase of any Mortgage Loan by the Sponsor
pursuant to this Agreement or the Mortgage Loan Purchase Agreement, as
applicable, or the eligibility of any Mortgage Loan for purposes of this
Agreement.
(xi) Any permissive right of the Trustee hereunder shall not be
construed as a duty.
-129-
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates (other than the signature and countersignature of the Securities
Administrator on the Certificates) shall be taken as the statements of the
Depositor, and neither the Trustee nor the Securities Administrator shall have
any responsibility for their correctness. Neither the Trustee nor the Securities
Administrator makes any representation as to the validity or sufficiency of the
Certificates (other than, as to the Securities Administrator, the signature and
countersignature of the Securities Administrator on the Certificates) or of any
Mortgage Loan except as expressly provided in Sections 2.02 and 2.05 hereof;
provided, however, that the foregoing shall not relieve the Trustee or the
Custodian of the obligation to review the Mortgage Files pursuant to Sections
2.02 and 2.04. The Securities Administrator's signature and countersignature (or
countersignature of its agent) on the Certificates shall be solely in its
capacity as Securities Administrator of the Trust Fund and shall not constitute
the Certificates an obligation of the Securities Administrator in any other
capacity. Neither the Trustee or the Securities Administrator shall be
accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor with respect to the Mortgage
Loans. Subject to the provisions of Section 2.05, neither the Trustee nor the
Securities Administrator shall be responsible for the legality or validity of
this Agreement or any document or instrument relating to this Agreement, the
validity of the execution of this Agreement or of any supplement hereto or
instrument of further assurance, or the validity, priority, perfection or
sufficiency of the security for the Certificates issued hereunder or intended to
be issued hereunder or of any guaranty of a NIMs Insurer or related document
other than, with respect to the Securities Administrator, the execution and
authentication of the Certificates. Neither the Trustee nor the Securities
Administrator shall at any time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust Fund or its ability to generate the payments to be distributed to
Certificateholders, under this Agreement. Neither the Trustee nor the Securities
Administrator shall have any responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement.
Section 9.04 Trustee and Securities Administrator May Own Certificates. The
Trustee and the Securities Administrator in its individual capacity or in any
capacity other than as Trustee hereunder may become the owner or pledgee of any
Certificates with the same rights it would have if it were not Trustee or the
Securities Administrator, as applicable, and may otherwise deal with the parties
hereto.
Section 9.05 Trustee's and Securities Administrator's Fees and Expenses.
The fees and expenses of the Trustee and the Securities Administrator shall be
paid by the Master Servicer in accordance with a side letter agreement. In
addition, the Trustee and the Securities Administrator will be entitled to
recover from the Master Servicer Collection Account pursuant to Section 4.03(b)
all reasonable out-of-pocket expenses, disbursements and advances and the
expenses of the Trustee and the Securities Administrator, respectively, in
connection with any Event of Default, any breach of this Agreement or any claim
or legal action (including any pending or threatened claim or legal action)
incurred or made by the Trustee or the Securities Administrator, respectively,
in the administration of the trusts hereunder (including the
-130-
reasonable compensation, expenses and disbursements of its counsel) except any
such expense, disbursement or advance as may arise from its negligence or
intentional misconduct or which is the responsibility of the Certificateholders
or the Trust Fund hereunder. If funds in the Master Servicer Collection Account
are insufficient therefor, the Trustee and the Securities Administrator shall
recover such expenses from the Depositor. Such compensation and reimbursement
obligation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust.
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator.
(a) The Trustee and any successor Trustee and the Securities Administrator
and any successor Securities Administrator shall during the entire duration of
this Agreement be a state bank or trust company or a national banking
association organized and doing business under the laws of such state or the
United States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus and undivided profits of at least
$40,000,000 or, in the case of a successor Trustee, $50,000,000, subject to
supervision or examination by federal or state authority and, in the case of the
Trustee, rated "BBB" or higher by S&P and "Aaa1" or higher by Moody's with
respect to their long-term rating and rated "BBB" or higher by S&P and "Baa1" or
higher by Moody's with respect to any outstanding long-term unsecured
unsubordinated debt, and, in the case of a successor Trustee or successor
Securities Administrator other than pursuant to Section 9.10, rated in one of
the two highest long-term debt categories of, or otherwise acceptable to, each
of the Rating Agencies and reasonably acceptable to the NIMs Insurer. If the
Trustee publishes reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section 9.06 the combined capital and surplus of such
corporation shall be deemed to be its total equity capital (combined capital and
surplus) as set forth in its most recent report of condition so published. In
case at any time the Trustee or the Securities Administrator shall cease to be
eligible in accordance with the provisions of this Section 9.06, the Trustee or
the Securities Administrator shall resign immediately in the manner and with the
effect specified in Section 9.08.
(b) In addition, the Securities Administrator (i) may not be an Originator,
Master Servicer, Servicer, the Depositor or an affiliate of the Depositor unless
the Securities Administrator is in an institutional trust department of the
relevant entity, (ii) must be authorized to exercise corporate trust powers
under the laws of its jurisdiction of organization, and (iii) must be rated at
least "A" by S&P or "A" Moody's. If no successor Securities Administrator shall
have been appointed and shall have accepted appointment within 60 days after the
Securities Administrator ceases to be the Securities Administrator pursuant to
Section 9.08, then the Trustee shall either (i) perform the duties of the
Securities Administrator pursuant to this Agreement until such time as a new
Securities Administrator is appointed or (ii) petition a court of competent
jurisdiction to appoint a successor securities administrator. The Trustee shall
notify the Rating Agencies of any change of Securities Administrator.
Section 9.07 Insurance. The Securities Administrator, at its own expense,
shall at all times maintain and keep in full force and effect: (i) fidelity
insurance, (ii) theft of documents insurance and (iii) forgery insurance (which
may be collectively satisfied by a "Financial Institution Bond" and/or a
"Bankers' Blanket Bond"). All such insurance shall be in amounts, with standard
coverage and subject to deductibles, as are customary for insurance typically
-131-
maintained by banks or their affiliates which act as custodians for
investor-owned mortgage pools. A certificate of an officer of the Securities
Administrator as to the Securities Administrator's compliance with this Section
9.07 shall be furnished to any Certificateholder upon reasonable written
request.
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator.
(a) The Trustee and the Securities Administrator may at any time resign and
be discharged from the trust hereby created by giving written notice thereof to
the Depositor, the NIMs Insurer and the Master Servicer, with a copy to the
Rating Agencies. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor Trustee or successor Securities Administrator, as
applicable, by written instrument, in triplicate, one copy of which instrument
shall be delivered to each of the resigning Trustee or Securities Administrator,
as applicable, the successor Trustee or Securities Administrator, as applicable.
If no successor Trustee or Securities Administrator shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Trustee or
Securities Administrator. If the Securities Administrator and the Master
Servicer are the same entity, then at any time the Securities Administrator
resigns or is removed as Securities Administrator, the Master Servicer shall
likewise be terminated as Master Servicer.
(b) If at any time the Trustee or the Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 9.06 and shall fail
to resign after written request therefor by the Depositor or if at any time the
Trustee or the Securities Administrator shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or the
Securities Administrator, as applicable, or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or the
Securities Administrator, as applicable, or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Depositor shall
promptly remove the Trustee, or shall be entitled to remove the Securities
Administrator, as applicable, and appoint a successor Trustee or Securities
Administrator, as applicable, by written instrument, in triplicate, one copy of
which instrument shall be delivered to each of the Trustee or Securities
Administrator, as applicable, so removed, the successor Trustee or Securities
Administrator, as applicable.
(c) The Holders of Certificates evidencing Percentage Interests aggregating
not less than 51% of the Trust Fund, with the consent of the NIMs Insurer, or
the NIMs Insurer, may at any time remove the Trustee or the Securities
Administrator and appoint a successor Trustee or Securities Administrator by
written instrument or instruments, in quadruplicate, signed by such Holders or
their attorneys-in-fact duly authorized (or the NIMs Insurer), one complete set
of which instruments shall be delivered to the Depositor, the Trustee, the
Securities Administrator (if the Trustee is removed), the Trustee (if the
Securities Administrator is removed), and the Trustee or Securities
Administrator so removed and the successor so appointed.
(d) No resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor Trustee or Securities Administrator
pursuant to any of the provisions of this Section 9.08 shall become effective
except upon appointment of and acceptance of such appointment by the successor
Trustee or Securities Administrator acceptable to the NIMs Insurer as provided
in Section 9.09.
-132-
Section 9.09 Successor Trustee and Successor Securities Administrator.
(a) Any successor Trustee or Securities Administrator appointed as provided
in Section 9.08 shall execute, acknowledge and deliver to the Depositor, the
Master Servicer, the NIMs Insurer and its predecessor Trustee or Securities
Administrator an instrument accepting such appointment hereunder. The
resignation or removal of the predecessor Trustee or Securities Administrator
shall then become effective and such successor Trustee or Securities
Administrator, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee or Securities
Administrator herein. The predecessor Trustee or Securities Administrator shall
after payment of its outstanding fees and expenses promptly deliver to the
successor Trustee or Securities Administrator, as applicable, all assets and
records of the Trust held by it hereunder, and the Depositor and the predecessor
Trustee or Securities Administrator, as applicable, shall execute and deliver
such instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Trustee or
Securities Administrator, as applicable, all such rights, powers, duties and
obligations.
(b) No successor Trustee or Securities Administrator shall accept
appointment as provided in this Section 9.09 unless at the time of such
acceptance such successor Trustee or Securities Administrator shall be eligible
under the provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee or Securities
Administrator as provided in this Section 9.09, the successor Trustee or
Securities Administrator shall mail notice of the succession of such Trustee or
Securities Administrator hereunder to all Certificateholders at their addresses
as shown in the Certificate Register and to the Rating Agencies. The Depositor
shall pay the cost of any mailing by the successor Trustee or Securities
Administrator.
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator. Any state bank or trust company or national banking association
into which the Trustee or the Securities Administrator may be merged or
converted or with which it may be consolidated or any state bank or trust
company or national banking association resulting from any merger, conversion or
consolidation to which the Trustee or the Securities Administrator,
respectively, shall be a party, or any state bank or trust company or national
banking association succeeding to all or substantially all of the corporate
trust business of the Trustee or the Securities Administrator, respectively,
shall be the successor of the Trustee or the Securities Administrator,
respectively, hereunder, provided such state bank or trust company or national
banking association shall be eligible under the provisions of Section 9.06. Such
succession shall be valid without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 9.11 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or property constituting the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by
-133-
the Trustee, the NIMs Insurer (which approval shall not be unreasonably withheld
or delayed) and the Depositor to act as co-trustee or co-trustees, jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 9.11, such powers, duties, obligations, rights and trusts as the
Depositor, the NIMs Insurer and the Trustee may consider necessary or desirable.
(b) If the Depositor or the NIMs Insurer shall not have joined in such
appointment within 15 days after the receipt by it of a written request so to
do, the Trustee shall have the power to make such appointment without the
Depositor or the NIMs Insurer.
(c) No co-Master Servicer or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 9.06
hereunder and no notice to Certificateholders of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.08
hereof.
(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred on such
co-trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(f) To the extent not prohibited by law, any separate trustee or co-trustee
may, at any time, request the Trustee, its agent or attorney-in-fact, with full
power and authority, to do any lawful act under or with respect to this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
(g) No Trustee under this Agreement shall be personally liable by reason of
any act or omission of another Trustee under this Agreement. The Depositor and
the Trustee acting
-134-
jointly, with the consent of the NIMs Insurer, may at any time accept the
resignation of or remove any separate trustee or co-trustee.
Section 9.12 Federal Information Returns and Reports to Certificateholders;
REMIC Administration.
(a) REMIC elections as set forth in the Preliminary Statement and this
Section 9.12 shall be made on Forms 1066 or other appropriate federal tax or
information return for the taxable year ending on the last day of the calendar
year in which the Certificates are issued. The regular interests and residual
interest in each REMIC shall be as designated in the Preliminary Statement and
this Section 9.12.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest possible
maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will be the
Latest Possible Maturity Date.
(c) The Securities Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and on
an accrual basis.
(d) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority with respect thereto. The Securities Administrator
shall pay any and all tax-related expenses (not including taxes) of each REMIC,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to such REMIC that
involve the Internal Revenue Service or state tax authorities, but only to the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as tax
return preparer). The Securities Administrator shall be entitled to
reimbursement of expenses to the extent provided in clause (i) above from the
Distribution Account, provided, however, the Securities Administrator shall not
be entitled to reimbursement for expenses incurred in connection with the
preparation of tax returns and other reports as required by this Section.
(e) The Securities Administrator shall prepare and file, and the Trustee
shall sign, all of each REMIC's and the Trust Fund's federal and appropriate
state tax and information returns as such REMIC's direct representative. The
expenses of preparing and filing such returns shall be borne by the Securities
Administrator.
(f) The Securities Administrator or its designee shall perform on behalf of
each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority. Among its other duties, if required by the Code, the REMIC
Provisions, or other such guidance, the Securities Administrator shall provide,
upon receipt of additional reasonable compensation, to the Treasury or other
governmental authority such information as is necessary for the application of
any tax relating to the transfer of a Residual Certificate to any disqualified
person or organization pursuant to Treasury Regulation 1.860E-2(a)(5) and any
person designated in Section 860E(e)(3) of the Code.
-135-
(g) The Securities Administrator and the Holders of Certificates shall take
any action or cause any REMIC to take any action necessary to create or maintain
the status of any REMIC as a REMIC under the REMIC Provisions and shall assist
each other as necessary to create or maintain such status. None of Wilshire, the
Securities Administrator nor the Holder of any Residual Certificate shall
knowingly take any action, cause any REMIC to take any action or fail to take
(or fail to cause to be taken) any action that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of any
REMIC as a REMIC or (ii) result in the imposition of a tax upon any REMIC
(including but not limited to the tax on prohibited transactions as defined in
Code Section 860F(a)(2) and the tax on prohibited contributions set forth on
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Securities Administrator has received a REMIC Opinion (at the expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such a tax.
In addition, prior to taking any action with respect to any REMIC or the assets
therein, or causing any REMIC to take any action, which is not permitted under
the terms of this Agreement, Wilshire or any Holder of a Residual Certificate
will consult with the Securities Administrator, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect to
any REMIC, and no such Person shall take any such action or cause any REMIC to
take any such action as to which the Securities Administrator has advised it in
writing that an Adverse REMIC Event could occur; provided, however, that if no
Adverse REMIC Event would occur but such action could result in the imposition
of additional taxes on the Residual Certificateholders, no such Person shall
take any such action, or cause any REMIC to take any such action without the
written consent of the Residual Certificateholders.
(h) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on the related REMIC by federal or state governmental authorities.
To the extent that such taxes are not paid by a Residual Certificateholder, the
Securities Administrator shall pay any remaining REMIC taxes out of current or
future amounts otherwise distributable to the Holder of the Residual Certificate
in any such REMIC or, if no such amounts are available, out of other amounts
held in the Distribution Account, and shall reduce amounts otherwise payable to
holders of regular interests in any such REMIC, as the case may be.
(i) The Securities Administrator shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of each REMIC created hereunder, an
application for an employer identification number on IRS Form SS-4 or by any
other acceptable method. The Securities Administrator shall also file a Form
8811 as required. The Securities Administrator, upon receipt from the IRS of the
Notice of Taxpayer Identification Number Assigned, shall upon request promptly
forward a copy of such notice to the Depositor. The Securities Administrator
shall furnish any other information that is required by the Code and regulations
thereunder to be made available to Certificateholders. The Depositor shall cause
each Servicer to provide the Securities Administrator with such information as
is necessary for the Securities Administrator to prepare such reports.
(j) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(k) The Securities Administrator shall not enter into any arrangement by
which any REMIC will receive a fee or other compensation for services.
-136-
(l) The Class R Holder shall act as "tax matters person" with respect to
each REMIC and irrevocably appoints the Securities Administrator to act as its
agent in such roles.
(m) The Securities Administrator shall prepare or cause to be prepared on
behalf of the Trust Fund, based upon information calculated in accordance with
this Agreement pursuant to instructions given by the Depositor, the Trustee
shall sign, and the Securities Administrator shall file federal tax returns, all
in accordance this Section 9.12. The Securities Administrator shall prepare and
file, and the Trustee shall sign, such state income tax returns and such other
returns as may be required by applicable law relating to the Trust Fund, and, if
required by state law, and shall file any other documents to the extent required
by applicable state tax law (to the extent such documents are in the Securities
Administrator's possession). The Securities Administrator shall forward copies
to the Depositor of all such returns and Form 1099 supplemental tax information
and such other information within the control of the Securities Administrator as
the Depositor may reasonably request in writing, and shall distribute to each
Certificateholder such forms and furnish such information within the control of
the Securities Administrator as are required by the Code and the REMIC
Provisions to be furnished to them, and will prepare and distribute to
Certificateholders Form 1099 (supplemental tax information) (or otherwise
furnish information within the control of the Securities Administrator) to the
extent required by applicable law.
(n) None of Wilshire, the Securities Administrator, the Trustee or the
Depositor, as assignees under this Agreement, shall provide any consent pursuant
to this Agreement or knowingly take any action under this Agreement that would
conflict with or violate the provisions of this Section 9.12.
(o) The parties intend that the portion of the Trust Fund consisting of the
right to receive the payments distributable to the Class P Certificates shall be
treated as a "grantor trust" under the Code, for the benefit of the holders of
the Class P Certificates, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the
Securities Administrator shall (i) furnish or cause to be furnished to the
holders of the Class P Certificates information regarding their allocable share
of the income with respect to such grantor trust and (ii) file or cause to be
filed with the Internal Revenue Service, and the Trustee shall sign, Form 1041
(together with any necessary attachments) and such other forms as may be
applicable. Such grantor trust is not a WHFIT. The Securities Administrator
shall have no obligation to monitor whether such grantor trust has become a
WHFIT following the Closing Date, and shall report under the WHFIT Regulations
only to the extent it receives written notice of the same.
(p) Notwithstanding any other provision of this Agreement, the Securities
Administrator shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount on the
Mortgage Loans, that the Securities Administrator reasonably believes are
applicable under the Code. The consent of Certificateholders shall not be
required for such withholding. In the event the Securities Administrator
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Securities Administrator shall, together with its monthly
report to such Certificateholders, indicate such amount withheld.
-137-
(q) Wilshire, the Trustee and the Securities Administrator agree to
indemnify the Trust Fund and the Depositor for any taxes and costs including,
without limitation, any reasonable attorneys fees imposed on or incurred by the
Trust Fund, the Depositor or the Trustee, as a result of a breach of Wilshire's
covenants, the Trustee's covenants and the Securities Administrator's covenants,
respectively, set forth in this Section 9.12; provided, however, such liability
and obligation to indemnify in this paragraph shall not be joint and several and
none of Wilshire, the Trustee nor the Securities Administrator shall be liable
or be obligated to indemnify the Trust Fund for the failure by any other to
perform any duty under this Agreement or the breach by any other of any covenant
in this Agreement.
(r) The Securities Administrator covenants and agrees that it shall act as
agent (and the Securities Administrator is hereby appointed to act as agent) of
the Tax Matters Person on behalf of each of the REMICs provided for herein and
that in such capacity it shall: (a) to the extent that they are under its
control conduct the affairs of each of the REMICs provided for herein at all
times that any Certificates are outstanding so as to maintain the status of each
of the REMICs provided for herein as a REMIC under the REMIC Provisions; (b) not
knowingly or intentionally take any action or omit to take any action that would
cause the termination of the REMIC status of any of the REMICs provided for
herein or result in the imposition of tax upon any such REMIC; (c) not knowingly
or intentionally take any action or omit to take any action that would cause the
termination of the grantor trust status under Subpart E, Part I of Subchapter J
of the Code of any of the grantor trusts provided for herein or result in the
imposition of tax upon any such grantor trust; and (d) as and when necessary and
appropriate, represent each of the REMICs provided for herein in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any of the REMICs provided for herein, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any of the REMICs provided for herein,
and otherwise act on behalf of each of the REMICs provided for herein in
relation to any tax matter involving any of such REMICs or any controversy
involving the Trust Fund.
(s) Each of the Depositor, Wilshire, the Master Servicer, the Securities
Administrator and the Trustee agrees not to take or omit to take knowingly or
intentionally, any action that would cause the termination of the REMIC status
of any of the REMICs provided for herein or result in the imposition of a tax
upon any of the REMICs provided for herein.
(t) [reserved].
(u) The Depositor hereby instructs and authorizes the Securities
Administrator to make an appropriate election to treat each of the Upper Tier
REMIC, the Lower Tier REMIC and the SWAP REMIC as a REMIC. The Trustee shall
sign the returns providing for such elections and such other tax or information
returns which are provided to it. This Agreement shall be construed so as to
carry out the intention of the parties that each of the Upper Tier REMIC, the
Lower Tier REMIC and the SWAP REMIC be treated as a REMIC at all times prior to
the date on which the Trust Fund is terminated.
The SWAP REMIC shall consist of all of the assets of the Trust Fund,
other than (i) amounts distributable to the Class P Certificates, (ii) the
interests issued by the SWAP REMIC and the interests issued by the Lower Tier
REMIC, (iii) the grantor trusts described in
-138-
Section 9.12 hereof, (iv) each Corridor Contract and the Corridor Contract
Account, (v) the Swap Agreement and the Supplemental Interest Trust and (vi) the
Final Maturity Reserve Account. The SWAP REMIC shall issue the SWAP REMIC
Regular Interests, which shall be designated as regular interests of such REMIC,
and shall issue the Class SWR Interest, which shall be designated as the sole
class of residual interest in the SWAP REMIC. Each of the SWAP REMIC Regular
Interests shall have the characteristics set forth in the Preliminary Statement
and this Section 9.12.
(v) The Lower Tier REMIC shall consist of the SWAP REMIC Regular Interests.
The Lower Tier REMIC shall issue the Lower Tier REMIC Regular Interests, which
shall be designated as regular interests of such REMIC, and shall issue the
Class LTR Interest that shall be designated as the sole class of residual
interest in the Lower Tier REMIC. Each of the Lower Tier REMIC Regular Interests
shall have the characteristics set forth in its definition, the Preliminary
Statement and this Section 9.12.
The assets of the Upper Tier REMIC shall be the Lower Tier REMIC
Regular Interests. The REMIC Regular Interests shall be designated as the
regular interests in the Upper Tier REMIC and the Residual Interest shall be
designated as the sole class of residual interest in the Upper Tier REMIC. For
federal income tax purposes, the pass-through rate on each REMIC Regular
Interest (other than the Uncertificated Class C Interest, the Class UT-Coupon
Strip Interest and the Class UT-IO Interest) and on the sole class of residual
interest in the Upper Tier REMIC shall be subject to a cap equal to the Upper
Tier REMIC Net WAC Cap.
The beneficial ownership of the Class SWR Interest and the Class LTR
Interest and the Residual Interest shall be represented by the Class R
Certificate. The Class SWR Interest and the Class LTR Interest shall not have a
principal balance or bear interest.
(w) (i) It is intended that the rights of each Class of the Certificates
(other than the Class C and Class P Certificates) to receive payments in respect
of Excess Interest shall be treated as a right in interest rate cap agreements
written by the Class C Certificateholders in favor of the holders of each Class
of the Certificates (other than the Class C and Class P Certificates) and such
shall be accounted for as property held separate and apart from the regular
interests in the Upper Tier REMIC held by the holders of the Senior Certificates
(other than the Class R Certificate), Class M Certificates, Class B Certificates
and the residual interest in the Upper Tier REMIC held by the holder of the
Class R Certificate. For information reporting requirements, the rights of the
Certificates (other than the Class C and Class P Certificates) to receive
payments in respect of Excess Interest shall be assumed to have zero or a de
minimis value. This provision is intended to satisfy the requirements of
Treasury Regulations Section 1.860G-2(i) for the treatment of property rights
coupled with REMIC interests to be separately respected and shall be interpreted
consistently with such regulation. On each Distribution Date, to the extent that
any of the Certificates (other than the Class C and Class P Certificates)
receive payments in respect of Excess Interest, such amounts, to the extent not
derived from payments on the Corridor Contract or the Swap Agreement, or from
the Final Maturity Reserve Account, or from payments in respect of Class C
Shortfalls as set forth in Section 9.12(z), will be treated as distributed by
the Upper Tier REMIC to the Class C Certificates pro rata in payment of the
amounts specified in Section 6.01(h) and then paid to the relevant Class of
Certificates pursuant to the related interest rate cap agreement.
-139-
(ii) It is intended that the beneficial owners of the Certificates
(other than the Class P and Class C Certificates) shall be treated as having
entered into a notional principal contract with respect to the beneficial owners
of the Class C Certificates. Pursuant to each such notional principal contract,
all beneficial owners of each Class of Certificates (other than the Class P and
Class C Certificates) shall be treated as having agreed to pay, on each
Distribution Date, to the beneficial owners of the Class C Certificates an
aggregate amount equal to the excess, if any, of (i) the amount payable on such
Distribution Date on the Corresponding REMIC Regular Interest of such Class of
Certificates over (ii) the amount payable on such Class of Certificates on such
Distribution Date (such excess, a "Class Payment Shortfall"). A Class Payment
Shortfall shall be allocated to each Class of Certificates to the extent that
interest accrued on such Class for the related Accrual Period at the
Pass-Through Rate for a Class, computed by substituting "Upper Tier REMIC Net
WAC Cap" for the Available Funds Cap set forth in the definition thereof,
exceeds the amount of interest accrued on such Certificate at the Pass-Through
Rate (without such substitution) for the related Accrual Period, and a Class
Payment Shortfall payable from principal collections shall be allocated to the
most subordinate Class of Certificates with an outstanding principal balance to
the extent of such balance.
(x) The parties intend that the portion of the Trust Fund consisting of the
Uncertificated Class C Interest, the uncertificated Class UT-IO Interest, the
uncertificated Class UT-Coupon Strip Interest, the Final Maturity Reserve
Account, the rights to receive payments deemed made by the Certificates (other
than the Class P and Class C Certificates) in respect of notional principal
contracts described in Section 9.12(w)(ii), the Corridor Contract, the Corridor
Contract Account, the Supplemental Interest Trust which holds the Swap
Agreement, the right to receive payments in respect of Class C Shortfalls as set
forth in Section 9.12(z), and the obligation of the holders of the Class C
Certificates to pay amounts in respect of Excess Interest to the holders of the
Certificates (other than the Class C and Class P Certificates) shall be treated
as a "grantor trust" under the Code, for the benefit of the holders of the Class
C Certificates, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Securities Administrator
shall (i) furnish or cause to be furnished to the holders of the Class C
Certificates information regarding their allocable share, if any, of the income
with respect to such grantor trust, (ii) file or cause to be filed with the
Internal Revenue Service Form 1041 (together with any necessary attachments) and
such other forms as may be applicable and (iii) comply with such information
reporting obligations with respect to payments from such grantor trust to the
holders of Certificates (other than the Class P Certificates) as may be
applicable under the Code. Such grantor trust is not a WHFIT. The Securities
Administrator shall have no obligation to monitor whether such grantor trust has
become a WHFIT following the Closing Date, and shall report under the WHFIT
Regulations only to the extent it receives written notice of the same.
-140-
(y) The parties intend that amounts paid to the Swap Counterparty under the
Swap Agreement shall be deemed for federal income tax purposes to be paid by the
Class C Certificates first, out of funds deemed received in respect of the Class
UT-IO Interest, second, out of funds deemed received in respect of the
Uncertificated Class C Interest and third, out of funds deemed received in
respect of notional principal contracts described in Section 9.12(w)(ii), and
the provisions hereof shall be interpreted consistently with this intention. On
each Distribution Date, to the extent that amounts paid to the Swap Counterparty
are deemed paid out of funds received in respect of the Uncertificated Class C
Interest, such amounts will be treated as distributed by the Upper Tier REMIC to
the Class C Certificates pro rata in payment of the amounts specified in Section
6.01(h) and then paid to the Swap Counterparty pursuant to the Swap Agreement.
The Supplemental Interest Trust shall be an "outside reserve fund" for
federal income tax purposes and not an asset of any REMIC. Furthermore, the
Holders of the Class C Certificates shall be the beneficial owners of the
Supplemental Interest Trust for all federal income tax purposes, and shall be
taxable on all income earned thereon. The Final Maturity Reserve Account shall
be an "outside reserve fund" for federal income tax purposes and not an asset of
any REMIC. Furthermore, the Holders of the Class C Certificates shall be the
beneficial owners of the Final Maturity Reserve Account for all federal income
tax purposes, and shall be taxable on all income earned thereon. Any payments in
respect of principal made from the Final Maturity Reserve Account to beneficial
owners of Certificates (other than the Class C Certificates) shall be treated
for federal income tax purposes as payments made by the Class C
Certificateholder in exchange for an interest in the Certificates then owned by
such beneficial owners. For purposes of the REMIC Provisions (including
distributions and allocations to any interest in any REMIC pursuant to this
Section 9.12(z)), such payments in respect of principal shall be deemed not to
reduce the principal amount of any Certificate receiving such payments.
(z) All payments of principal and interest at the Net Mortgage Rate on each
of the Mortgage Loans (other than amounts distributable to the Class P
Certificates) received by the SWAP REMIC with respect to the Mortgage Loans
shall be paid to the SWAP REMIC Regular Interests until the principal balance of
all such interests have been reduced to zero and any losses allocated to such
interests have been reimbursed. Any available funds remaining in the SWAP REMIC
on a Distribution Date after distributions to the SWAP REMIC Regular Interests
shall be distributed to the Class R Certificates on account of the Class SWR
Interest. On each Distribution Date, distributions shall first be made in
respect of the Class SW-Coupon Strip Interest in an amount equal to any amount
required to be deposited into the Final Maturity Reserve Account for such
Distribution Date. On each Distribution Date, the Securities Administrator shall
distribute the aggregate Interest Funds (net of expenses (other than any Net
Swap Payment or Swap Termination Payment required to be made to the Swap
Counterparty), amounts required to be deposited into the Final Maturity Reserve
Account and payments to the Class P Certificates) with respect to each of the
other SWAP REMIC Regular Interests based on the interest rates for each such
SWAP REMIC Regular Interest. On each Distribution Date, the Securities
Administrator shall distribute the aggregate Principal Funds with respect to the
Mortgage Loans first to the Class SW-Z Interest until its principal balance is
reduced to zero and then sequentially to each of the other SWAP REMIC Regular
Interests
-141-
(other than the Class SW-Coupon Strip Interest) in ascending order of their
numerical class designation, in equal amounts to each such class in such
numerical designation, until the principal balance of each such class is reduced
to zero. All losses with respect to the Mortgage Loans shall be allocated among
the SWAP REMIC Regular Interests in the same manner that principal distributions
are allocated. Subsequent Recoveries with respect to the Mortgage Loans and loss
reimbursements shall be allocated among the SWAP REMIC Regular Interests in the
reverse fashion from the manner in which losses are allocated. Increases in
principal amount as a result of Net Negative Amortization with respect to the
Mortgage Loans for any Distribution Date shall be allocated among the SWAP REMIC
Regular Interests, first to the Class SW-Z Interest up to an amount equal to the
accrued interest thereon for such Distribution Date, and then sequentially, to
the other SWAP REMIC Regular Interests (other than the Class SW-Coupon Strip
Interest) in ascending order of their numerical Class designation, and, with
respect to each pair of Classes having the same numerical designation, in equal
amounts to each such Class, up to an amount equal to the accrued interest
thereon for such Distribution Date.
All payments received by the Lower Tier REMIC with respect to the SWAP
REMIC Regular Interests shall be paid to the Lower Tier REMIC Regular Interests
until the principal balance of all such interests have been reduced to zero and
any losses allocated to such interests have been reimbursed. Any excess amounts
shall be distributed to the Class LTR Interest.
On each Distribution Date, distributions shall first be made in respect of
the Class LT-Coupon Strip Interest in an amount equal to the amount required to
be deposited into the Final Maturity Reserve Account for such Distribution Date.
Second, from all remaining amounts to be paid and allocated on each Distribution
Date,
(i) interest shortfalls with respect to the Mortgage Loans (other
than interest shortfalls attributable to Negative Amortization) shall be
allocated to the Lower Tier REMIC Regular Interests (other than the Class
LT-IO Interest and the Class LT-Coupon Strip Interest) pro rata based on
the interest otherwise accrued thereon;
(ii) the principal balance of each Lower Tier REMIC Regular
Interest (other than the Class LT-Coupon Strip Interest) shall be increased
by the amount of interest accrued thereon (net of interest shortfalls
allocated thereto pursuant to the immediately preceding clause (i));
(iii) cash received by the Lower Tier REMIC with respect to the
SWAP REMIC Regular Interests shall be distributed first to the Class LT-IO
Interest in reduction of its principal balance so that its principal
balance is as close as possible to zero. Any remaining cash shall be
distributed to, and losses with respect to the Mortgage Loans shall be
allocated to:
first, to each class of Lower Tier REMIC Marker Interest,
sequentially, beginning with the Lower Tier REMIC Marker Interest the
Corresponding Certificate of which has the highest Pass-Through Rate
through the Lower Tier REMIC Marker Interest the Corresponding
Certificate of which has the lowest Pass-Through Rate, in reduction of
its principal balance so that its
-142-
principal balance is as close as possible to 50% of the principal
balance of its Corresponding Certificate; and
second, to the Class LTX Interest in reduction of its
principal balance so that its principal balance is as close as
possible to the sum of (x) 50% of the aggregate Stated Principal
Balance of the Mortgage Loans and (y) 50% of the Overcollateralization
Amount.
If on any Distribution Date there is an increase in the
Certificate Principal Balance of any LIBOR Certificate pursuant to the last
sentence of the definition of Certificate Principal Balance, then there
shall be a corresponding increase in the principal amount of the Lower Tier
REMIC Regular Interests allocated as follows:
first, to each of the Lower Tier REMIC Regular Interests
(other than the Class LTX Interest, other than the Class LT-Coupon
Strip Interest and other than the Class LT-IO Interest) so that the
principal balance of each such interest is as close as possible to 50%
of the principal balances of its Corresponding Certificate; and
second, to the Class LTX Interest so that the principal
balance of such interest is as close as possible to the sum of (x) 50%
of the aggregate Stated Principal Balance of the Mortgage Loans and
(y) 50% of the Overcollateralization Amount.
The excess, if any, of amounts payable with respect to the REMIC
regular interests held by the Upper Tier REMIC over the amounts payable
with respect to the REMIC Regular Interests with respect to each Accrual
Period shall, solely for purposes of the REMIC Provisions, be deemed earned
by the Securities Administrator as an additional fee, which amount shall be
deemed paid by the Securities Administrator to the holders of the Class C
Certificates. It is intended that the rights of the holders of the Class C
Certificates to receive such deemed payments ("Class C Shortfalls") shall
be treated as rights in respect of an interest rate cap contract written by
the Securities Administrator in favor of the holders of the Class C
Certificates and shall be accounted for as property separate and apart from
the REMIC regular interests represented by the Class C Certificates. This
provision is intended to comply with the requirements of Treasury
Regulations Section 1.860G-2(i) for the treatment of property rights
coupled with regular interests to be separately respected and shall be
interpreted consistently with such regulation. For information reporting
purposes, it will be assumed that the right to receive deemed payments in
respect of Class C Shortfalls has no value. The Securities Administrator
and the beneficial holders of the Class C Certificates by their acceptance
of such Certificates agree that they will take tax reporting positions that
allocate no more than a nominal value to such right and that they will
adopt tax reporting positions consistent with the payments deemed made to
the Class C Certificates in respect of Class C Shortfalls as payments in
respect of interest rate cap agreements written by the Securities
Administrator.
-143-
ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Repurchase of all Mortgage
Loans.
(a) Subject to Section 10.03, the obligations and responsibilities of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
created hereby with respect to that portion of the Trust Fund relating to the
Certificates shall terminate upon the earlier of (a) an Optional Termination and
(b) the later of (i) the maturity or other liquidation of the last Mortgage Loan
remaining in the Trust Fund (or any Advance with respect thereto) and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to this Agreement, as
applicable. In no event shall the trusts created hereby continue beyond the
earlier of (i) the expiration of 21 years from the death of the last survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to the Court of St. James's, living on the date hereof and (ii) the Latest
Possible Maturity Date.
(b) On or before the Determination Date following the Initial Optional
Termination Date, the Securities Administrator shall attempt to terminate that
portion of the Trust Fund relating to the Certificates by conducting an auction
of all of the Mortgage Loans and REO Properties via a solicitation of bids from
at least three (3) bidders, each of which shall be a nationally recognized
participant in mortgage finance (the "Auction"). The Depositor and the
Securities Administrator agree to work in good faith to develop bid procedures
in advance of the Initial Optional Termination Date to govern the operation of
the Auction. The Securities Administrator shall be entitled to retain an
investment banking firm and/or other agents in connection with the Auction, the
cost of which shall be included in the Optional Termination Price (unless an
Optional Termination does not occur in which case such costs shall be an expense
of the Issuing Entity). The Securities Administrator shall accept the highest
bid received at the Auction; provided that the amount of such bid equals or
exceeds the Optional Termination Price. The Securities Administrator shall
determine the Optional Termination Price based upon information provided by (i)
the Master Servicer with respect to the amounts described in clauses (A) and (B)
of the definition of "Optional Termination Price" (other than Securities
Administrator's expenses) and (ii) the Depositor with respect to the information
described in clause (C) of the definition of "Optional Termination Price." The
Securities Administrator may conclusively rely upon the information provided to
it in accordance with the immediately preceding sentence and shall not have any
liability for the failure of any party to provide such information.
Notwithstanding anything herein to the contrary, only an amount equal to the
Optional Termination Price, reduced by the portion thereof consisting of the sum
of (x) any Swap Termination Payment and (y) the amount of any unpaid Net Swap
Payments and any other amounts owed to the Swap Counterparty that would not
otherwise be funded by the Optional Termination Price but for clause (E) of the
definition of "Optional Termination Price" (such portion, the "Swap Optional
Termination Payment"), shall be made available for distribution to the
Certificates. The Swap Optional Termination Payment shall be withdrawn by the
Securities Administrator from the Distribution Account and remitted to the
Supplemental Interest Trust for payment to the Swap Counterparty. The Swap
Optional Termination Payment shall not be part of any REMIC and shall not be
paid into any account which is part of any REMIC.
-144-
If an Optional Termination does not occur as a result of the Auction's
failure to achieve the Optional Termination Price, the NIMs Insurer (or the
Master Servicer, if the NIMs Insurer does not do so) may, on any Distribution
Date following such Auction, at its option, terminate that portion of the Trust
Fund relating to the Certificates by purchasing all of the Mortgage Loans and
REO Properties at a price equal to the Optional Termination Price. In connection
with such termination, the Optional Termination Price shall be delivered to the
Securities Administrator no later than the Business Day immediately preceding
the related Distribution Date. Notwithstanding anything to the contrary herein,
the Optional Termination Amount paid to the Securities Administrator by the
winning bidder at the Auction or by the NIMs Insurer or by the Master Servicer
shall be deposited by the Securities Administrator directly into the
Distribution Account immediately upon receipt. Upon any termination as a result
of an Auction, the Securities Administrator shall, out of the Optional
Termination Amount deposited into the Distribution Account, (x) pay the
Securities Administrator its costs and expenses necessary to conduct the Auction
and any other unreimbursed amounts owing to it and (y) pay to the Master
Servicer or Servicer, the aggregate amount of any unreimbursed out-of-pocket
costs and expenses owed to the Master Servicer or Servicer and any unpaid or
unreimbursed Servicing Fees, Advances and Servicing Advances.
(c) Notwithstanding anything to the contrary in clause (b) above, in the
event that the Securities Administrator and the Trustee receive the written
opinion of a nationally recognized participant in mortgage finance acceptable to
the Sponsor that the Mortgage Loans and REO Properties to be included in the
Auction will not be saleable at a price sufficient to achieve the Optional
Termination Price, the Securities Administrator need not conduct the Auction. In
such event, the NIMs Insurer, if any, and the Master Servicer in the event the
NIMs Insurer declines to exercise its option, shall have the option to purchase
the Mortgage Loans and REO Properties at the Optional Termination Price as of
the Initial Optional Termination Date.
Section 10.02 Final Distribution on the Certificates.
If on any Determination Date, (i) the Securities Administrator determines
that there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund relating to the Mortgage Loans other than the funds in the Master
Servicer Collection Account, the Securities Administrator shall send a final
distribution notice promptly to each Certificateholder and the NIMs Insurer or
(ii) the Securities Administrator determines that a Class of Certificates shall
be retired after a final distribution on such Class, the Securities
Administrator shall notify the Certificateholders within seven (7) Business Days
after such Determination Date that the final distribution in retirement of such
Class of Certificates is scheduled to be made on the immediately following
Distribution Date. Any final distribution made pursuant to the immediately
preceding sentence will be made only upon presentation and surrender of the
Certificates at the office of the Securities Administrator.
Notice of any partial termination of the Issuing Entity, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Securities Administrator by letter to Certificateholders mailed no later
than the last calendar day of the month immediately preceding the month of such
final distribution (or with respect to an Auction, mailed no later than one
Business Day following completion of such Auction). Any such notice shall
specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon
-145-
presentation and surrender of Certificates at the office therein designated, (b)
the location of the office or agency at which such presentation and surrender
must be made, and (c) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office therein specified.
The Securities Administrator will give such notice to the NIMs insurer, if any,
the Swap Counterparty and to each Rating Agency at the time such notice is given
to Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
funds in the Master Servicer Collection Account to be deposited in the
Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon receipt of written notice of such final deposit with respect
to the Issuing Entity and the receipt by the Trustee, or its Custodian, of a
Request for Release therefor, the Trustee, or its Custodian, shall promptly
release to the Securities Administrator, the NIMs Insurer or the Master
Servicer, as applicable, the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to Certificateholders of each Class
the amounts allocable to such Certificates held in the Distribution Account in
the order and priority set forth in Section 6.01 hereof on the final
Distribution Date and in proportion to their respective Percentage Interests.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above-mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that remain a part of the Issuing Entity. If within one
year after the second notice all Certificates shall not have been surrendered
for cancellation, the Class R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Issuing Entity that remain subject
hereto. Upon payment to the Class R Certificateholders of such funds and assets,
the Securities Administrator shall have no further duties or obligations with
respect thereto.
Section 10.03 Additional Termination Requirements.
(a) In the event the Securities Administrator, the NIMs Insurer or the
Master Servicer exercises its purchase option as provided in Section 10.01, that
portion of the Trust Fund relating to the Mortgage Loans shall be terminated in
accordance with the following additional requirements, unless the Securities
Administrator shall have been furnished with an Opinion of Counsel to the effect
that the failure of the Issuing Entity to comply with the requirements of this
Section will not (i) result in the imposition of taxes on "prohibited
transactions" of the Issuing Entity as defined in Section 860F of the Code or
(ii) cause any REMIC constituting part of the Issuing Entity to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date, the
Securities Administrator shall adopt and sign a plan of complete
liquidation of the Issuing Entity as
-146-
provided to it by the terminating purchaser, meeting the requirements of a
"qualified liquidation" under Section 860F of the Code and any regulations
thereunder; and
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Securities
Administrator shall sell all of the assets of the Issuing Entity for cash
pursuant to the terms of the plan of complete liquidation.
(b) By their acceptance of Certificates, the Holders thereof hereby agree
to appoint the Securities Administrator as their attorney in fact to: (i) adopt
such a plan of complete liquidation (and the Certificateholders hereby appoint
the Securities Administrator as their attorney in fact to sign such plan) as
appropriate and (ii) to take such other action in connection therewith as may be
reasonably required to carry out such plan of complete liquidation all in
accordance with the terms hereof.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Intent of Parties. The parties intend that each REMIC shall
be treated as a REMIC for federal income tax purposes and that the provisions of
this Agreement should be construed in furtherance of this intent.
Section 11.02 Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator, Wilshire (to the extent Wilshire
is servicing Mortgage Loans hereunder or to the extent that such amendment may
adversely affect Wilshire) and the Trustee, with the consent of the NIMs Insurer
and without the consent of any of the Certificateholders to:
(i) to cure any ambiguity or correct any mistake,
(ii) to correct, modify or supplement any provision herein which
may be inconsistent with any other provision herein,
(iii) to add any other provisions with respect to matters or
questions arising under this Agreement, or
(iv) to modify, alter, amend, add to or rescind any of the terms
or provisions contained in this Agreement; provided, however, that, in the
case of clauses (iii) and (iv), such amendment will not, as evidenced by an
Opinion of Counsel addressed to the Securities Administrator to such
effect, adversely affect in any material respect the interests of any
Certificateholder; provided, further, however, that such amendment will be
deemed to not adversely affect in any material respect the interest of any
Holder if the Person requesting such amendment obtains a letter from each
Rating Agency stating that such amendment will not result in a reduction or
withdrawal of its rating of any Class of the Certificates, it being
understood and agreed that any such letter in and of itself will
-147-
not represent a determination as to the materiality of any such amendment
and will represent a determination only as to the credit issues affecting
any such rating.
The Securities Administrator shall not enter into any amendment to this
Agreement that could have a materially adverse effect on the Cap Contract
Counterparty or the Swap Counterparty without first obtaining the prior written
consent of the Cap Contract Counterparty or Swap Counterparty, respectively.
Notwithstanding the foregoing, without the consent of the
Certificateholders, the Depositor, the Master Servicer, the Securities
Administrator, Wilshire (to the extent Wilshire is servicing Mortgage Loans
hereunder or to the extent that such amendment may adversely affect Wilshire)
and the Trustee may at any time and from time to time amend this Agreement to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary or appropriate to maintain the qualification of any of the REMICs
provided for herein as REMICs under the Code or to avoid or minimize the risk of
the imposition of any tax on the Issuing Entity or any of the REMICs provided
for herein pursuant to the Code that would be a claim against the Issuing Entity
at any time prior to the final redemption of the Certificates, provided that the
Trustee, the NIMs Insurer and the Securities Administrator shall have been
provided an Opinion of Counsel addressed to the Trustee and the Securities
Administrator, which opinion shall be an expense of the party requesting such
amendment but in any case shall not be an expense of the Trustee and the
Securities Administrator, to the effect that such action is necessary or
appropriate to maintain such qualification or to avoid or minimize the risk of
the imposition of such a tax.
(b) This Agreement may also be amended from time to time by the Master
Servicer, the Depositor, the Securities Administrator, Wilshire (to the extent
Wilshire is servicing Mortgage Loans hereunder or to the extent that such
amendment may adversely affect Wilshire) and the Trustee, with the consent of
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Certificate Principal Balance of the Certificates or of the
applicable Class or Classes, if such amendment affects only such Class or
Classes, with the consent of the NIMs Insurer, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall (i) reduce
in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Regular Certificate
without the consent of the Holder of such Regular Certificate, or (ii) reduce
the aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all
Certificates then outstanding. Notwithstanding any contrary provision of this
Agreement, the Trustee shall not consent to any amendment to this Agreement
unless it shall have first received an Opinion of Counsel addressed to the
Trustee, which opinion shall be an expense of the party requesting such
amendment but in any case shall not be an expense of the Trustee, to the effect
that such amendment is permitted hereunder and will not cause the imposition of
any tax on the Issuing Entity, any of the REMICs provided for herein or the
Certificateholders or cause any of the REMICs provided for herein to fail to
qualify as a REMIC at any time that any Certificates are outstanding.
(c) Promptly after the execution of any such amendment, the Securities
Administrator shall furnish a copy of such amendment or written notification of
the substance of such amendment to each Certificateholder, with a copy to the
Rating Agencies.
-148-
(d) In the case of an amendment under Section 11.02(b) above, it shall not
be necessary for the Certificateholders to approve the particular form of such
an amendment. Rather, it shall be sufficient if the Certificateholders approve
the substance of the amendment. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable regulations as the Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the Trustee
and the NIMs Insurer shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and will not adversely affect the status of any REMIC created
hereunder. The Trustee and the Securities Administrator may, but shall not be
obligated to, enter into any such amendment which affects the Trustee's or the
Securities Administrator's own respective rights, duties or immunities under
this Agreement.
Section 11.03 Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Depositor
shall effect such recordation, at the expense of the Issuing Entity upon the
request in writing of a Certificateholder, but only if such direction is
accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the Certificateholders
or is required by law.
Section 11.04 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not terminate
this Agreement or the Issuing Entity, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Issuing Entity, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as expressly provided in this Agreement, no Certificateholders
shall have any right to vote or in any manner otherwise control the operation
and management of the Issuing Entity, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to establish the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholders be under any liability to any third Person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon, under or with respect to this Agreement against the Depositor, the
Securities Administrator, the Master Servicer or any successor to any such
parties unless (i) such Certificateholder previously shall have given to the
Trustee a written notice of a continuing default, as herein provided, (ii) the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Trust Fund shall have made written request upon the Trustee to
institute such action, suit or
-149-
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs and
expenses and liabilities to be incurred therein or thereby, and (iii) the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding.
(d) No one or more Certificateholders shall have any right by virtue of any
provision of this Agreement to affect the rights of any other Certificateholders
or to obtain or seek to obtain priority or preference over any other such
Certificateholder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.04, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.05 Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is expressly required, to the
Depositor. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee and the Depositor, if made in the manner
provided in this Section 11.05.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the individual executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 5.02 made on a Regular Certificate presented in
accordance with Section 5.04) shall be proved by the Certificate Register, and
neither the Trustee, the Securities Administrator, the Depositor, the Master
Servicer nor any successor to any such parties shall be affected by any notice
to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action of the holder of any Regular Certificate shall bind every future
holder of the same Regular Certificate and the holder of every Regular
Certificate issued upon the registration of transfer or exchange thereof, if
applicable, or in lieu thereof with respect to anything done, omitted or
suffered to be done by the Trustee, the Securities Administrator, the Depositor,
the Master
-150-
Servicer or any successor to any such party in reliance thereon, whether or not
notation of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Percentage Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Trustee, the Securities Administrator, the Depositor, the Master
Servicer or any Affiliate thereof shall be disregarded, except as otherwise
provided in Section 11.02(b) and except that, in determining whether the
Securities Administrator or the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Certificates which a Responsible Officer of the Trustee knows to be so owned
shall be so disregarded. Certificates which have been pledged in good faith to
the Trustee, the Securities Administrator, the Depositor, the Master Servicer or
any Affiliate thereof may be regarded as outstanding if the pledgor establishes
to the satisfaction of the Securities Administrator the pledgor's right to act
with respect to such Certificates and that the pledgor is not an Affiliate of
the Trustee, the Securities Administrator, the Depositor, or the Master
Servicer, as the case may be.
Section 11.06 Governing Law. THIS AGREEMENT AND THE CERTIFICATES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAWS RULES AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.07 Notices. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Vice
President-Servicing, telecopier number: (000) 000-0000, or to such other address
as may hereafter be furnished to the other parties hereto in writing; (ii) in
the case of the Trustee, at its Corporate Trust Office, or such other address as
may hereafter be furnished to the other parties hereto in writing; (iii) in the
case of the Master Servicer or Securities Administrator, Xxxxx Fargo Bank, N.A.,
X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Service Manager MANA
Series 2007-OAR3, or, in the case of overnight deliveries, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Client Service Manager MANA
Series 2007-OAR3, facsimile no.: (000) 000-0000, or such other address as may
hereafter be furnished to the other parties hereto in writing; (iv) in the case
of the Custodian, Xxxxx Fargo Bank, N.A., 0000 00xx Xxxxxx Xxxxxxxxx, XX 0031,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: MANA Series 2007-OAR3; or such other
address as may hereafter be furnished to the other parties hereto in writing;
(v) in the case of the Rating Agencies, Xxxxx'x Investors Service, Inc., 00
Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Standard & Poor's, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; (vi) in the case of Wilshire, Wilshire Credit Corporation, 00000 X.X.
Xxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx, Xxxxxx 00000, Attention: V.P. Client
Services, or (vii) in the case of the Cap Contract Counterparty and the Swap
Counterparty, Xxxxxx Xxxxxxx Capital Markets Inc., Transaction Management Group,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Chief Legal Officer.
Any notice delivered to the Depositor, the Trustee, the Securities Administrator
or the Master Servicer under this Agreement shall be effective only upon
receipt. Any notice required or permitted to be
-151-
mailed to a Certificateholder, unless otherwise provided herein, shall be given
by first-class mail, postage prepaid, at the address of such Certificateholder
as shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given when mailed, whether or not the Certificateholder receives such notice.
Section 11.08 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severed from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 11.09 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 11.10 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.11 Counterparts. This Agreement may be executed in two or more
counterparts each of which when so executed and delivered shall be an original
but all of which together shall constitute one and the same instrument.
Section 11.12 Notice to Rating Agencies. The Trustee shall promptly provide
notice to each Rating Agency and the NIMs Insurer with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement or the Applicable
Servicing Agreements;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Trustee, the Master Servicer or
the Securities Administrator;
4. The repurchase or substitution of Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Master Servicer Collection Account or
the Distribution Account.
Section 11.13 Third Party Rights. (a) The Cap Contract Counterparty and
Swap Counterparty shall be deemed third party beneficiaries of this Agreement
regarding provisions related to payments owed to the Cap Contract Counterparty
or Swap Counterparty, respectively, so long as any of the Corridor Contract or
the Swap Agreement, as applicable, remain in effect. The Custodian shall be
deemed a third party beneficiary of this Agreement regarding provisions
-152-
related to indemnifying the Custodian so long as the Custodian remains custodian
under the Custodial Agreement.
(b) The NIMs Insurer shall be deemed a third-party beneficiary of this
Agreement to the same extent as if it were a party hereto, and shall have the
right to enforce the provisions of this Agreement.
Section 11.14 Additional Rights of the NIMs Insurer.
(a) Provided that a party has been provided with the contact
information of the NIMs Insurer, such party, any agent thereof and any successor
thereto shall furnish to the NIMs Insurer a copy of any notice, direction,
demand, opinion, schedule, list, certificate or report required to be provided
under this Agreement and provided by it or on its behalf to any other Person
pursuant to this Agreement at the same time, in the same form and in the same
manner as such communication is so provided and shall address or cause such
communication to be addressed to the NIMs Insurer in addition to any other
addressee thereof. With respect to the Master Servicer, the Securities
Administrator and the Trustee, such obligation shall be satisfied with the
provision of access to the NIMs Insurer to the Master Servicer's or the
Securities Administrator's website.
(b) Wherever in this Agreement there shall be a requirement that there
be no downgrade, reduction, withdrawal or qualification of or other effect on
the rating of any Class of Certificates by any Rating Agency as of any date,
there also shall be deemed to be a requirement that there be no such effect on
any class of notes issued pursuant to the Indenture and guaranteed by the NIMs
Insurer as of such date. In addition, unless there exists a continuance of any
failure by the NIMs Insurer to make a required payment under the policy insuring
the NIM Notes (such event, a "NIMs Insurer Default"), wherever in this Agreement
there shall be a requirement that any Person or any communication, object or
other matter be acceptable or satisfactory to or otherwise receive the consent
or other approval of any other Person (whether as a condition to the eligibility
of such Person to act in any capacity, as a condition to any circumstance or
state of affairs related to such matter, or otherwise), there also shall be
deemed to be a requirement that such Person or matter be approved in writing by
the NIMs Insurer, which approval shall not be unreasonably withheld or delayed.
ARTICLE XII
PROHIBITED TRANSACTIONS
Section 12.01 [Reserved].
Section 12.02 Prohibited Transactions and Activities. None of Wilshire, the
Depositor nor the Securities Administrator shall sell, dispose of, or substitute
for any of the Mortgage Loans, except in a disposition pursuant to (i) the
foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund, (iii) the
termination of each REMIC pursuant to Article X of this Agreement, (iv) a
substitution pursuant to Article II of this Agreement or (v) a repurchase of
Mortgage Loans pursuant to Article II of this Agreement, nor acquire any assets
for any REMIC, nor sell or dispose of any investments in the Distribution
Account for gain, nor accept any contributions to any REMIC after the Closing
Date, unless it has received an Opinion of Counsel (at the expense of the party
causing such sale, disposition, or substitution) that such disposition,
-153-
acquisition, substitution, or acceptance will not (a) affect adversely the
status of any such REMIC as a REMIC or of the interests therein other than the
Residual Certificate as the regular interests therein, (b) affect the
distribution of interest or principal on the Certificates, (c) result in the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement) or (d) cause any such REMIC to be
subject to any tax including a tax on prohibited transactions or prohibited
contributions pursuant to the REMIC Provisions.
Section 12.03 Indemnification with Respect to Prohibited Transactions or
Loss of REMIC Status.
(a) In the event that a REMIC fails to qualify as a REMIC, loses its status
as a REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to the
negligent performance by the Securities Administrator of its duties and
obligations set forth herein, the Securities Administrator shall indemnify the
Certificateholders against any and all losses, claims, damages, liabilities or
expenses ("Losses") resulting from such negligence; provided, however, that the
Securities Administrator shall not be liable for any such Losses attributable to
the action or inaction of the Depositor or the Holder of the Residual
Certificate, nor for any such Losses resulting from misinformation provided by
any of the foregoing parties on which the Securities Administrator has relied.
Notwithstanding the foregoing, however, in no event shall the Trustee or the
Securities Administrator have any liability (1) for any action or omission that
is taken in accordance with and in compliance with the express terms of, or
which is expressly permitted by the terms of, this Agreement or the Mortgage
Loan Purchase Agreement, (2) for any Losses other than arising out of
malfeasance, willful misconduct or negligent performance by the Securities
Administrator with respect to its duties and obligations set forth herein, and
(3) for any special or consequential damages to Certificateholders of the
related Residual Certificate (in addition to payment of principal and interest
on the Certificates).
(b) In the event that a REMIC fails to qualify as a REMIC, loses its status
as a REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to the
negligent performance by Wilshire of its duties and obligations set forth
herein, Wilshire shall indemnify the Certificateholders against any and all
losses, claims, damages, liabilities or expenses ("Losses") resulting from such
negligence; provided, however, that Wilshire shall not be liable for any such
Losses attributable to the action or inaction of the Depositor, another
Servicer, the Securities Administrator or the Holder of the Residual
Certificate, nor for any such Losses resulting from misinformation provided by
any of the foregoing parties on which Wilshire has relied. Notwithstanding the
foregoing, however, in no event shall Wilshire have any liability (1) for any
action or omission that is taken in accordance with and in compliance with the
express terms of, or which is expressly permitted by the terms of, this
Agreement or the Mortgage Loan Purchase Agreement, (2) for any Losses other than
arising out of malfeasance, willful misconduct or negligent performance by
Wilshire with respect to its duties and obligations set forth herein, and (3)
for any special or consequential damages to Certificateholders (in addition to
payment of principal and interest on the Certificates).
Section 12.04 REO Property.
-154-
(a) (i) Notwithstanding any other provision of this Agreement, the
Securities Administrator shall not, except to the extent provided in this
Agreement for which the Securities Administrator is obligated to perform,
knowingly permit any Servicer to rent, lease, otherwise earn income or take any
other action on behalf of any REMIC with respect to any REO Property other than
as provided in Section 13.12 of this Agreement.
(ii) Notwithstanding any other provision of this Agreement, Wilshire
shall not rent, lease, otherwise earn income or take any other action on behalf
of any REMIC with respect to any REO Property other than as provided in Section
13.12 of this Agreement.
(b) (i) The Depositor shall cause each Servicer (to the extent provided in
the Applicable Servicing Agreement) to make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Depositor shall,
or shall cause the Servicer (to the extent provided in this Agreement) to,
dispose of any REO Property as provided in Section 13.12 of this Agreement.
(ii) Wilshire shall make reasonable efforts to sell any REO Property
for its fair market value. In any event, however, Wilshire shall dispose of any
REO Property in accordance with the provisions of Section 13.12 of this
Agreement.
ARTICLE XIII
SERVICING OF MORTGAGE LOANS
Section 13.01 Wilshire to Service Mortgage Loans.
For and on behalf of the Certificateholders, Wilshire shall service and
administer the Mortgage Loans in accordance with the Accepted Servicing
Practices. In connection with such servicing and administration, Wilshire shall
have full power and authority, acting alone and/or through Subservicers, as
provided in Section 13.02 hereof, to do or cause to be done any and all things
that it may deem necessary or desirable in connection with such servicing and
administration, including but not limited to, the power and authority, subject
to the terms hereof (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 (but only
in the manner provided in this Agreement), (iii) to collect any Insurance
Proceeds and other Liquidation Proceeds and (iv) subject to Section 13.12(a), to
effectuate foreclosure or other conversion of the ownership of the Mortgaged
Property securing any Mortgage Loan; provided that, subject to Section 14.03,
Wilshire shall not take any action that is inconsistent with or prejudices the
interests of the Trust Fund or the Certificateholders in any Mortgage Loan
serviced by it under this Agreement or the rights and interests of the other
parties to this Agreement except as otherwise required by this Agreement or by
law. Notwithstanding anything in this Agreement to the contrary, Wilshire shall
not make or permit any modification, waiver or amendment of any term of any
Mortgage Loan that would cause any of the REMICs provided for herein to fail to
qualify as a REMIC or result in the imposition of any tax under Section 860G(a)
or 860G(d) of the Code. Wilshire shall represent and protect the interest of the
Trust Fund in the same manner as it currently protects its own interest in
mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan, but in any case not in any manner that is a lesser
standard than that provided in the first sentence of this Section 13.01. Without
limiting the
-155-
generality of the foregoing, Wilshire, in its own name or in the name of the
Depositor and the Trustee, is hereby authorized and empowered by the Depositor
and the Trustee, when Wilshire believes it appropriate in its reasonable
judgment, to execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, subordinations and all
other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. Wilshire shall prepare and deliver to the Depositor and/or
the Trustee such documents requiring execution and delivery by any or all of
them as are necessary or appropriate to enable Wilshire to service and
administer the Mortgage Loans, to the extent that Wilshire is not permitted to
execute and deliver such documents pursuant to the preceding sentence. Upon
receipt of such documents, the Depositor and/or the Trustee shall execute such
documents and deliver them to Wilshire. For purposes of this Section 13.01, the
Trustee hereby grants to Company a limited power of attorney to execute and file
any and all documents necessary to fulfill the obligations of Wilshire under
this Section 13.01.
Wilshire shall not be required to make any Servicing Advance with respect
to a Mortgage Loan that is 150 days or more delinquent.
Wilshire shall deliver a list of Servicing Officers to the Trustee by the
Closing Date.
Wilshire will transmit full-file credit reporting data for each Mortgage
Loan pursuant to Xxxxxx Xxx Guide Announcement 97-02, and for each Mortgage
Loan, Wilshire agrees that it shall report one of the following statuses each
month as follows: current, delinquent (30-, 60-, 90-days, etc.), foreclosed or
charged-off, except as is otherwise appropriate for prevention or resolution of
disputes with mortgagors.
Wilshire further is authorized and empowered by the Trustee, on behalf of
the Certificateholders and the Trustee, in its own name or in the name of the
Subservicer, when Wilshire or the Subservicer, as the case may be, believes it
is appropriate in its best judgment to register any Mortgage Loan on the MERS
System, or cause the removal from the registration of any Mortgage Loan on the
MERS System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any reasonable expenses incurred in connection with the
actions described in the preceding sentence or as a result of MERS discontinuing
or becoming unable to continue operations in connection with the MERS System,
shall be subject to withdrawal by Wilshire from the Collection Account (provided
that such expenses constitute "unanticipated expenses" within the meaning of
Treasury Regulation Section 1.860G-1(b)(3)(ii)).
Section 13.02 Servicing and Subservicing; Enforcement of the Obligations of
Wilshire.
(a) Wilshire may arrange for the subservicing of any Mortgage Loan by a
Subservicer, which may be an Affiliate (each, a "Subservicer") pursuant to a
subservicing agreement (each, a "Subservicing Agreement") including, at such
Servicer's option, if requested to do so by the Holder of the Class C
Certificate; provided, however, that (i) such subservicing arrangement and the
terms of the related subservicing agreement must provide for the servicing of
such Mortgage Loans in a manner consistent with the servicing arrangements
contemplated
-156-
hereunder and (ii) that such agreement would not result in a withdrawal or
downgrading by any Rating Agency of the ratings of any Certificates evidenced by
a letter to that effect delivered by each Rating Agency to the Depositor.
Notwithstanding the provisions of any subservicing agreement, any of the
provisions of this Agreement relating to agreements or arrangements between a
Servicer and a Subservicer or reference to actions taken through a Subservicer
or otherwise, the Servicers shall remain obligated and liable to the Depositor,
the Master Servicer and the Certificateholders for the servicing and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicers alone were servicing and administering the Mortgage Loans. Every
subservicing agreement entered into by Wilshire shall contain a provision giving
any successor servicer the option to terminate such agreement in the event a
successor servicer is appointed. All actions of the each Subservicer performed
pursuant to the related subservicing agreement shall be performed as an agent of
Wilshire with the same force and effect as if performed directly by Wilshire.
Wilshire shall deliver to the Master Servicer copies of all subservicing
agreements no later than the date designated for delivery of the Assessment of
Compliance. The Master Servicer agrees that it shall keep any such subservicing
agreement confidential. Wilshire may redact any such subservicing agreements
prior to delivery to remove fees paid to any subservicers. The Master Servicer
shall have no obligations, duties or liabilities with respect to a Subservicer,
including without limitation, any obligation, duty or liability to monitor such
Subservicer or to pay a Subservicer's fees and expenses.
(b) For purposes of this Agreement, Wilshire shall be deemed to have
received any collections, recoveries or payments with respect to the related
Mortgage Loans that are received by a Subservicer regardless of whether such
payments are remitted by the Subservicer to the Servicer.
(c) Wilshire shall not permit a Subservicer that would be required under
this Agreement or any subservicing agreement to deliver an Annual Statement of
Compliance, an Assessment of Compliance and an Accountant's Attestation to
perform any servicing responsibilities hereunder with respect to the Mortgage
Loans unless that Subservicer first agrees in writing with Wilshire to deliver
such Annual Statement of Compliance, an Assessment of Compliance and an
Accountant's Attestation in such manner and at such times that permits that
Servicer to comply with Sections 16.04 and 16.05 of this Agreement.
Section 13.03 Rights of the Depositor and the Trustee in Respect of the
Servicers.
Neither the Trustee nor the Depositor shall have any responsibility or
liability for any action or failure to act by the Servicers, and neither of them
is obligated to supervise the performance of the Servicers hereunder or
otherwise.
Section 13.04 Master Servicer to Act as Servicer.
Subject to Sections 14.04 and 15.02, in the event that Wilshire shall for
any reason no longer be a Servicer hereunder (other than due to a servicing
transfer pursuant to the terms hereof, but including by reason of a Servicer
Event of Default), the Master Servicer or its designee shall, within a period of
time not to exceed ninety (90) days from the date of notice of
-157-
termination or resignation, thereupon assume all of the rights and obligations
of Wilshire hereunder arising thereafter (except that the Master Servicer shall
not be (i) liable for losses of such Servicer pursuant to Section 13.10 hereof
or any acts or omissions of Wilshire hereunder, (ii) obligated to make Advances
or Servicing Advances if it is prohibited from doing so by applicable law, (iii)
obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder, including pursuant to Section 2.02 or 2.06 hereof, (iv) responsible
for any expenses of Wilshire pursuant to Section 2.06 or (v) deemed to have made
any representations and warranties hereunder, including pursuant to Section 2.07
or the first paragraph of Section 14.02 hereof; provided, however that the
Master Servicer (subject to clause (ii) above) or its designee, in its capacity
as the successor servicer, shall immediately assume Wilshire's obligation to
make Advances and Servicing Advances). No such termination or resignation shall
affect any obligation of Wilshire to pay amounts owed under this Agreement and
to perform its duties under this Agreement until its successor assumes all of
its rights and obligations hereunder. If Wilshire shall for any reason no longer
be a Servicer (other than due to the servicing transfer pursuant to the terms
hereof, but including by reason of any Servicer Event of Default), the Master
Servicer (or any other successor servicer) may, at its option, succeed to any
rights and obligations of Wilshire under any subservicing agreement in
accordance with the terms thereof; provided, however, that the Master Servicer
(or any other successor servicer) shall not incur any liability or have any
obligations in its capacity as servicer under a subservicing agreement arising
prior to the date of such succession unless it expressly elects to succeed to
the rights and obligations of Wilshire thereunder; and Wilshire shall not
thereby be relieved of any liability or obligations under the subservicing
agreement arising prior to the date of such succession. To the extent any costs
or expenses, including without limitation, Servicing Transfer Costs incurred by
the Master Servicer in connection with this Section 13.04, are not paid by
Wilshire pursuant to this Agreement within 30 days of the date of the Master
Servicer's invoice thereof, such amounts shall be payable to the Master Servicer
pursuant to this Agreement; provided that if Wilshire has been terminated by
reason of a Servicer Event of Default, Wilshire shall reimburse the Issuing
Entity for any such expense incurred by the Issuing Entity upon receipt of a
reasonably detailed invoice evidencing such expenses. If the Master Servicer is
unwilling or unable to act as servicer, the Master Servicer shall seek to
appoint a successor servicer that is eligible in accordance with the criteria
specified in this Agreement.
Wilshire shall, upon request of the Master Servicer, but at the expense of
Wilshire if Wilshire has been terminated by reason of a Servicer Event of
Default, deliver to the assuming party all documents and records relating to
each subservicing agreement and the Mortgage Loans then being serviced and
otherwise use its best efforts to effect the orderly and efficient transfer of
the subservicing agreement to the assuming party.
Section 13.05 Collection of Mortgage Loan Payments.
(a) Wilshire shall make reasonable efforts in accordance with Accepted
Servicing Practices to collect all payments called for under the terms and
provisions of the Mortgage Loans to the extent such procedures shall be
consistent with this Agreement and the terms and provisions of any related
Required Insurance Policy. Consistent with the foregoing, Wilshire may in its
discretion (i) waive any late payment charge or, if applicable, any default
interest charge, or (ii) subject to Section 13.01, extend the due dates for
payments due on a Mortgage Note for a period not greater than 180 days;
provided, however, that any extension pursuant to
-158-
clause (ii) above shall not affect the amortization schedule of any Mortgage
Loan for purposes of any computation hereunder, except as provided below. In the
event of any such arrangement pursuant to clause (ii) above, subject to Section
13.22, Wilshire shall make any Advances on the related Mortgage Loan during the
scheduled period in accordance with its obligations under this Agreement without
modification thereof by reason of such arrangements. Notwithstanding the
foregoing, in the event that any Mortgage Loan is in default or, in the judgment
of Wilshire, such default is reasonably foreseeable, Wilshire, consistent with
the standards set forth in Section 13.01, may also waive, modify or vary any
term of such Mortgage Loan (including modifications that would change the
Mortgage Interest Rate, forgive the payment of principal or interest or extend
the final maturity date of such Mortgage Loan), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal or
interest, postponements, or indulgences collectively referred to herein as
"forbearance"), provided, however, that in determining which course of action
permitted by this sentence it shall pursue, Wilshire shall adhere to the
standards of Section 13.01. Wilshire's analysis supporting any forbearance and
the conclusion that any forbearance meets the standards of Section 13.01 shall
be reflected in writing in the Mortgage File.
With respect to Mortgage Loans affected by a hurricane or other natural
disaster, if the Mortgaged Property is located in public and individual
assistance counties, as designated by Federal Emergency Management Agency (as
set forth on its website xxx.xxxx.xxx), the related Servicer (or the related
Subservicer, if such Servicer is no longer servicing Mortgage Loans), may, at
its sole option, cease collection activities, charging late fees and credit
reporting activity for all Mortgagors in such counties for a period of time and,
if reasonably prudent, may extend such period as long as it deems necessary. In
addition, the related Servicer (or the related Subservicer, if applicable) may
suspend all foreclosure and bankruptcy activity relating to such Mortgage Loans
for a period of time and, if reasonably prudent, may extend such period as long
as it deems necessary.
(b) Wilshire shall not waive any Prepayment Charge or portion thereof
unless, (i) the enforceability thereof shall have been limited by bankruptcy,
insolvency, moratorium, receivership or other similar laws relating to
creditors' rights generally or is otherwise prohibited by law, or (ii) the
collectability thereof shall have been limited due to acceleration in connection
with a foreclosure or other involuntary payment, or (iii) in Wilshire's
reasonable judgment as described in Section 13.01 hereof, (x) such waiver
relates to a default or a reasonably foreseeable default and (y) such waiver
would maximize recovery of total proceeds taking into account the value of such
Prepayment Charge and related Mortgage Loan, or (iv) the collection of such
Prepayment Charge or portion thereof, or of a similar type of Prepayment Charge,
would be considered "predatory" or "illegal" pursuant to written guidance
published by any applicable federal, state or local regulatory authority having
jurisdiction over such matters or has been challenged by any such authority, or
unless the Depositor has notified Wilshire in writing that there are NIM Notes
outstanding (and such NIM Notes remain outstanding), there is a certificated
class action in which a similar type of prepayment charge is being challenged.
Except as provided in the preceding sentence, in no event will Wilshire waive a
Prepayment Charge in connection with a refinancing of a Mortgage Loan that is
not related to a default or a reasonably foreseeable default. If Wilshire waives
or does not collect all or a portion of a
-159-
Prepayment Charge relating to a Principal Prepayment in full or in part due to
any action or omission of Wilshire, other than as provided above, Wilshire shall
deposit the amount of such Prepayment Charge (or such portion thereof as had
been waived for deposit) into the applicable Collection Account for distribution
in accordance with the terms of this Agreement.
(c) Wilshire shall not be required to institute or join in litigation with
respect to collection of any payment (whether under a Mortgage, Mortgage Note or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if it reasonably believes that enforcing the provision
of the Mortgage or other instrument pursuant to which such payment is required
is prohibited by applicable law.
(d) Wilshire shall establish and initially maintain, on behalf of the
Certificateholders, a Collection Account. Wilshire shall deposit into such
Collection Account daily, within two Business Days of receipt thereof, in
immediately available funds, the following payments and collections received or
made by it on and after the Cut-off Date with respect to the Mortgage Loans:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans, other than principal due on the
Mortgage Loans on or prior to the Cut-off Date;
(ii) all payments on account of interest on the Mortgage Loans net of
the related Servicing Fee permitted under Section 13.15, other than
interest due on the Mortgage Loans on or prior to the Cut-off Date;
(iii) all Liquidation Proceeds, other than proceeds to be applied to
the restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Wilshire's normal servicing procedures;
(iv) all Subsequent Recoveries;
(v) all Compensating Interest;
(vi) any amount required to be deposited by Wilshire pursuant to
Section 13.05(f) in connection with any losses on Permitted Investments;
(vii) any amounts required to be deposited by Wilshire pursuant to
Section 13.10 hereof;
(viii) all Advances made by Wilshire pursuant to Section 13.22;
(ix) all Prepayment Charges received; and
(x) any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by Wilshire into the Collection
Account shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, all servicing related fees, including
all late payment charges, insufficient funds charges and payments in the nature
of assumption fees (i.e. fees related to the assumption of a
-160-
Mortgage Loan upon the purchase of the related Mortgaged Property) modification
fees, extension fees and other similar ancillary fees and charges (other than
Prepayment Charges) if collected need not be remitted by Wilshire. Rather, such
fees and charges may be retained by Wilshire as additional servicing
compensation. In the event that Wilshire shall remit any amount not required to
be remitted and not otherwise subject to withdrawal pursuant to Section 13.08
hereof, it may at any time withdraw or direct the Master Servicer, or such other
institution maintaining the Collection Account, to withdraw such amount from the
Collection Account, any provision herein to the contrary notwithstanding.
Wilshire shall maintain adequate records with respect to all withdrawals made
pursuant to this Section. All funds deposited in the Collection Account shall be
held in trust for the Certificateholders until withdrawn in accordance with
Section 13.08. In no event shall the Master Servicer incur liability for
withdrawals from the Collection Account at the direction of Wilshire.
Wilshire shall give notice to the Master Servicer of the location of the
Collection Account maintained by it when established and prior to any change
thereof. Not later than twenty days after each Distribution Date, at the request
of the Master Servicer, Wilshire shall forward to the Master Servicer the most
current available bank statement for the Collection Account.
(e) [Reserved]
(f) Each institution that maintains a Collection Account may invest the
funds in each such account, as directed by Wilshire in writing, in Permitted
Investments, which shall mature not later than the Business Day preceding the
related Servicer Remittance Date (except that if such Permitted Investment is an
obligation of the institution that maintains such Collection Account or is
otherwise immediately available, then such Permitted Investment shall mature not
later than the Servicer Remittance Date) and shall not be sold or disposed of
prior to its maturity. All such Permitted Investments shall be made in the name
of the Trustee for the benefit of the Certificateholders. All income and gain
net of any losses realized from amounts on deposit in each Collection Account
shall be for the benefit of Wilshire as servicing compensation and shall be
remitted to it monthly as provided herein. The amount of any losses incurred in
the each Collection Account in respect of any such investments shall be
deposited by Wilshire in the Collection Account out of Wilshire's own funds
immediately as realized.
Section 13.06 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
To the extent required by the related Mortgage Note, Wilshire shall
establish and maintain one or more accounts (each, an "Escrow Account") and
deposit and retain therein all collections from the Mortgagors (or advances by
Wilshire) for the payment of taxes, assessments, hazard insurance premiums or
comparable items for the account of the Mortgagors. Nothing herein shall require
Wilshire to compel a Mortgagor to establish an Escrow Account in violation of
applicable law.
Withdrawals of amounts so collected from the Escrow Accounts may be made
only to effect timely payment of taxes, assessments, hazard insurance premiums,
condominium or PUD association dues, or comparable items, to reimburse Wilshire
out of related collections for any payments made pursuant to Sections 13.01
hereof (with respect to taxes and assessments and insurance premiums,
condominium or PUD association dues or comparable items) and 13.10 hereof (with
respect to hazard insurance), to refund to any Mortgagors any sums as may be
-161-
determined to be overages, to pay interest, if required by law or the terms of
the related Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow
Account to withdraw funds deposited in error or amounts previously deposited but
returned as unpaid due to a "not sufficient funds" or other denial by the
related Mortgagor's banking institution or to clear and terminate the Escrow
Account at the termination of this Agreement in accordance with Section 10.01
hereof. The Escrow Accounts shall not be a part of the Trust Fund.
Section 13.07 Access to Certain Documentation and Information Regarding the
Mortgage Loans.
Upon reasonable advance notice in writing if required by federal
regulation, Wilshire will provide to each Certificateholder that is a savings
and loan association, bank or insurance company certain reports and reasonable
access to information and documentation regarding the Mortgage Loans sufficient
to permit such Certificateholder to comply with applicable regulations of the
OTS or other regulatory authorities with respect to investment in the
Certificates; provided, that Wilshire shall be entitled to be reimbursed by each
such Certificateholder for actual expenses incurred by Wilshire in providing
such reports and access.
Wilshire may from time to time provide the Depositor, the Master Servicer,
the Securities Administrator and the Trustee, with reports and information
regarding the Mortgage Loans, including without limitation, information
requested by the Depositor or an originator of the Mortgage Loans for required
institutional risk control. In addition, subject to limitations of applicable
privacy laws, Wilshire may make public information regarding performance of the
Mortgage Loans.
Section 13.08 Permitted Withdrawals from the Collection Account.
Wilshire may from time to time, make withdrawals from the Collection
Accounts for the following purposes:
(i) to pay to itself (to the extent not previously paid to or withheld
by Wilshire), as servicing compensation in accordance with Section 13.15,
that portion of any payment of interest that equals the Servicing Fee for
the period with respect to which such interest payment was made, and, as
additional servicing compensation, those other amounts set forth in Section
13.15;
(ii) to reimburse itself for Advances made by it (or to reimburse the
Advance Financing Person for Advances made by it) with respect to the
Mortgage Loans, such right of reimbursement pursuant to this subclause (ii)
being limited to amounts received on particular Mortgage Loan(s)
(including, for this purpose, condemnation proceeds, Insurance Proceeds and
Liquidation Proceeds) that represent late recoveries of payments of
principal and/or interest on such particular Mortgage Loan(s) in respect of
which any such Advance was made;
(iii) to reimburse itself for any Non-Recoverable Advance previously
made and any Non-Recoverable Servicing Advances previously made to the
extent that, in the case of Non-Recoverable Servicing Advances,
reimbursement therefor constitutes
-162-
"unanticipated expenses" within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii);
(iv) to pay to itself earnings on or investment income with respect to
funds in or credited to the applicable Collection Account;
(v) to reimburse itself from Insurance Proceeds for Insured Expenses
covered by the related Insurance Policy;
(vi) [reserved];
(vii) to pay to itself any unpaid Servicing Fees and to reimburse
itself for any unreimbursed Servicing Advances (to the extent that
reimbursement for Servicing Advances would constitute an "unanticipated
expense" within the meaning of Treasury Regulation Section
1.860-1(b)(3)(ii)), Wilshire's right to reimbursement of Servicing Advances
pursuant to this subclause (vi) with respect to any Mortgage Loan being
limited to amounts received on particular Mortgage Loan(s) (including, for
this purpose, Liquidation Proceeds and purchase and repurchase proceeds)
that represent late recoveries of the payments for which such advances were
made pursuant to Section 13.01 or Section 13.06;
(viii) to pay to itself any unpaid Servicing Fees for any Mortgage
Loan upon such Mortgage Loan being charged off and upon termination of
Wilshire's obligations;
(ix) to pay to the Depositor or to itself, as applicable, with respect
to each Mortgage Loan or property acquired in respect thereof that has been
purchased pursuant to Section 13.12, all amounts received thereon and not
taken into account in determining the related Stated Principal Balance of
such repurchased Mortgage Loan;
(x) to reimburse itself, the Trustee or the Depositor for expenses
incurred by any of them in connection with the Mortgage Loans or
Certificates and reimbursable pursuant to Section 13.04, Section 13.19 or
Section 14.04 hereof provided that reimbursement therefor would constitute
"unanticipated" expenses within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii);
(xi) to reimburse the Trustee for enforcement expenses reasonably
incurred in respect of a breach or defect giving rise to the purchase
obligation in Section 2.06 that were incurred in the Purchase Price of the
Mortgage Loans including any expenses arising out of the enforcement of the
purchase obligation; provided that any such expenses will be reimbursable
under this subclause (xi) only to the extent that such expenses would
constitute "unanticipated expenses" within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii) if paid by one of the REMICs provided
for herein;
(xii) [reserved];
(xiii) to withdraw pursuant to Section 13.05 any amount deposited in
the Collection Accounts and not required to be deposited therein; and
-163-
(xiv) to clear and terminate the Collection Accounts upon termination
of this Agreement pursuant to Section 10.01 hereof.
In addition, Wilshire will use commercially reasonable efforts to cause to
be withdrawn from the Collection Account no later than 3:00 p.m. Eastern Time,
but in any case no later than 3:30 p.m. Eastern Time on the Servicer Remittance
Date, the Interest Funds and the Principal Funds (for this purpose only, neither
Interest Funds nor Principal Funds shall include a deduction for any amount
reimbursable to the Trustee unless such amounts have actually been reimbursed
from such funds at the discretion of the applicable Servicer and the calculation
of the Interest Funds and Principal Funds shall not include item (7) of the
definition of Interest Funds and item (C) of the definition of Principal Funds),
to the extent on deposit, and such amount shall be deposited in the Master
Servicer Collection Account; provided, however, if the Master Servicer does not
receive such Interest Funds and Principal Funds by 3:30 p.m. Eastern Time, such
Interest Funds and Principal Funds may be deposited in the Master Servicer
Collection Account on the next Business Day. In the event such funds are not
deposited by 3:30 p.m. Eastern Time on the Servicer Remittance Date and the
Master Servicer has not deposited such funds on such Servicer Remittance Date in
the Master Servicer Collection Account, Wilshire shall pay, out of its own
funds, interest on such amount at a rate equal to the then current "prime rate"
(as published by Xxxxx Fargo Bank, N.A.) for each date or part thereof until
such amount is paid in full.
Wilshire shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
applicable Collection Account.
Wilshire shall provide written notification to the Master Servicer on or
prior to the next succeeding Servicer Remittance Date upon making any
withdrawals from the Collection Accounts pursuant to subclauses (iii) and (vii)
above.
Unless otherwise specified, any amounts reimbursable to Wilshire from
amounts on deposit in the Collection Accounts shall be deemed to come from
first, Interest Funds, and thereafter, Principal Funds for the related
Distribution Date.
Section 13.09 [RESERVED]
Section 13.10 Maintenance of Hazard Insurance.
Wilshire shall cause to be maintained, for each Mortgage Loan secured by a
first lien, fire and hazard insurance with extended coverage in an amount, to
the extent permitted by applicable law, that is at least equal to the lesser of
(i) the estimated replacement value of the improvements that are part of such
Mortgaged Property (which may be the last known coverage) and (ii) the greater
of (a) the outstanding principal balance of the Mortgage Loan and (b) an amount
such that the proceeds of such policy shall be sufficient to prevent the related
Mortgagor and/or mortgagee from becoming a co-insurer. Each such policy of
standard hazard insurance shall contain, or have an accompanying endorsement
that contains, a standard mortgagee clause. Wilshire shall also cause flood
insurance to be maintained on property acquired upon foreclosure or deed in lieu
of foreclosure of any Mortgage Loan, to the extent described below. Pursuant to
Section 13.05 hereof, any amounts collected by Wilshire under any such policies
(other than the amounts to be applied to the restoration or repair of the
related Mortgaged Property or property
-164-
thus acquired or amounts released to the Mortgagor in accordance with Wilshire's
normal servicing procedures) shall be deposited in the applicable Collection
Account. Any cost incurred by Wilshire in maintaining any such insurance shall
not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Master Servicer for their benefit, be
added to the principal balance of the Mortgage Loan, notwithstanding that the
terms of the Mortgage Loan so permit. Such costs shall be recoverable by
Wilshire as a Servicing Advance to the extent provided in Section 13.08(a)(vii)
hereof. It is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor or maintained on property acquired
in respect of a Mortgage other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. If the Mortgaged Property with respect to a Mortgage Loan
secured by a first lien is located at the time of origination of the Mortgage
Loan in a federally designated special flood hazard area and such area is
participating in the national flood insurance program, Wilshire shall cause
flood insurance to be maintained with respect to such Mortgage Loan. Such flood
insurance shall be in an amount equal to the lesser of (i) the outstanding
principal balance of the related Mortgage Loan, (ii) the estimated replacement
value of the improvements that are part of such Mortgaged Property (which may be
the last known coverage), or (iii) the maximum amount of such insurance
available for the related Mortgaged Property under the Flood Disaster Protection
Act of 1973, as amended.
In the event that Wilshire shall obtain and maintain a blanket policy
insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first sentence of this Section 13.10, it being understood and agreed that such
policy may contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by comparable servicers. If such
policy contains a deductible clause, Wilshire shall, in the event that there
shall not have been maintained on the related Mortgaged Property a policy
complying with the first sentence of this Section 13.10, and there shall have
been a loss that would have been covered by such policy, deposit in the
applicable Collection Account the amount not otherwise payable under the blanket
policy because of such deductible clause. In connection with its activities as
servicer of the Mortgage Loans, Wilshire agrees to present, on behalf of itself,
the Depositor and the Master Servicer for the benefit of the Certificateholders,
claims under any such blanket policy.
Section 13.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements.
When a Mortgaged Property has been or is about to be conveyed by the
Mortgagor, Wilshire shall, except as set forth below, to the extent it has
knowledge of such conveyance or prospective conveyance, exercise its rights to
accelerate the maturity of the related Mortgage Loan under any "due-on-sale"
clause contained in the related Mortgage or Mortgage Note; provided, however,
that Wilshire shall not exercise any such right if the "due-on-sale" clause, in
the reasonable belief of Wilshire, is not enforceable under applicable law;
provided further, that Wilshire shall not take any action in relation to the
enforcement of any "due-on-sale" clause that would adversely affect or
jeopardize coverage under any Required Insurance Policy. An Opinion of Counsel
at the expense of Wilshire (which expense shall constitute a Servicing Advance)
delivered to the Master Servicer and the Depositor shall conclusively establish
the reasonableness of Wilshire's belief that any "due-on-sale" clause is not
enforceable under applicable law, but which shall not be required. In such
event, Wilshire shall make reasonable
-165-
efforts to enter into an assumption and modification agreement with the Person
to whom such property has been or is about to be conveyed, pursuant to which
such Person becomes liable under the Mortgage Note and, unless prohibited by
applicable law or the Mortgage, the Mortgagor remains liable thereon. If the
foregoing is not permitted under applicable law, Wilshire is authorized to enter
into a substitution of liability agreement with such Person, pursuant to which
the original Mortgagor is released from liability and such Person is substituted
as Mortgagor and becomes liable under the Note. In addition to the foregoing,
Wilshire shall not be required to enforce any "due-on-sale" clause or take any
of the above actions if Wilshire believes the collections and other recoveries
in respect of the Mortgage Loan would be maximized if the Mortgage Loan were not
accelerated and such actions not taken. The Mortgage Loan, as assumed, shall
conform in all respects to the requirements, representations and warranties of
this Agreement. Wilshire shall notify the Master Servicer and the Trustee that
any such assumption or substitution agreement has been completed by forwarding
to the Trustee (or its Custodian) the original copy of such assumption or
substitution agreement (indicating the Mortgage File to which it relates), which
copy shall be added by the Trustee (or its Custodian) to the related Mortgage
File and which shall, for all purposes, be considered a part of such Mortgage
File to the same extent as all other documents and instruments constituting a
part thereof. Wilshire shall be responsible for recording any such assumption or
substitution agreements. In connection with any such assumption or substitution
agreement, the Monthly Payment on the related Mortgage Loan shall not be changed
but shall remain as in effect immediately prior to the assumption or
substitution, the stated maturity or outstanding principal amount of such
Mortgage Loan shall not be changed nor shall any required monthly payments of
principal or interest be deferred or forgiven. Any fee collected by Wilshire for
consenting to any such conveyance or entering into an assumption or substitution
agreement shall be retained by or paid to Wilshire as additional servicing
compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, Wilshire shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or any transfer or assumption which Wilshire reasonably
believes it is restricted by law from preventing, for any reason whatsoever.
Section 13.12 Realization Upon Defaulted Mortgage Loans; Determination of
Excess Proceeds; Special Loss Mitigation.
(a) Wilshire shall use reasonable efforts consistent with the servicing
standard set forth in Section 13.01 to foreclose upon or otherwise comparably
convert the ownership of 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. In connection with such foreclosure
or other conversion, Wilshire shall follow such practices and procedures as it
shall deem necessary or advisable and as shall be normal and usual in its
general mortgage servicing activities and the requirements of the insurer under
any Required Insurance Policy; provided, however, that Wilshire shall not be
required to expend its own funds in connection with the restoration of any
property that shall have suffered damage due to an uninsured cause unless it
shall determine (i) that such restoration will increase the proceeds of
liquidation of the Mortgage Loan after reimbursement to itself of such expenses
and (ii) that such expenses will be recoverable to it through Liquidation
Proceeds (respecting which it shall have
-166-
priority for purposes of withdrawals from the Collection Accounts pursuant to
Section 13.08 hereof). Wilshire shall be responsible for all other costs and
expenses incurred by it in any such proceedings; provided, however, that it
shall be entitled to reimbursement thereof from the proceeds of liquidation of
the related Mortgaged Property, as contemplated in Section 13.08 hereof. Any
Mortgage Loan that is charged off may be sold to the majority Certificateholder
of the Class C Certificates, at its option, at its fair market value after the
time period specified in (e) below. If a Servicer has received written notice
that a Mortgaged Property that it is contemplating acquiring in foreclosure or
by deed-in-lieu of foreclosure is located within a one-mile radius of any site
with environmental or hazardous waste risks known to Wilshire, Wilshire will,
prior to acquiring the Mortgaged Property, consider such risks and only take
action in accordance with Accepted Servicing Practices.
With respect to any REO Property, the deed or certificate of sale shall be
taken in the name of the Trustee or its nominee, which shall not be Wilshire.
Pursuant to its efforts to sell such REO Property, Wilshire shall either itself
or through an agent selected by Wilshire protect and conserve such REO Property
in the same manner and to such extent as is customary in the locality where such
REO Property is located and may, incident to its conservation and protection of
the interests of the Certificateholders, rent the same, or any part thereof, as
Wilshire deems to be in the best interest of itself and the Certificateholders
for the period prior to the sale of such REO Property. Wilshire shall prepare a
statement with respect to each REO Property that has been rented showing the
aggregate rental income received and all expenses incurred in connection with
the management and maintenance of such REO Property at such times as is
necessary to enable Wilshire to comply with the reporting requirements of the
REMIC Provisions. The net monthly rental income, if any, from such REO Property
shall be deposited in the applicable Collection Account no later than the close
of business on each Determination Date. Wilshire shall perform the tax reporting
and withholding related to foreclosures, abandonments and cancellation of
indebtedness income as specified by Sections 1445, 6050J and 6050P of the Code
by preparing and filing such tax and information returns, as may be required.
In the event that the Issuing Entity acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, Wilshire shall make reasonable efforts to sell any REO Property
for its fair market value. In any event, Wilshire shall dispose of such REO
Property prior to the expiration of three years from the end of the year of its
acquisition by the Issuing Entity or, at the expense of the Issuing Entity,
obtain, in accordance with applicable procedures for obtaining an automatic
extension of the grace period, no later than 33 months after its acquisition by
the Issuing Entity, an extension of the three-year grace period, in which case
such property must be disposed of prior to the end of such extension, unless the
Trustee, the Master Servicer and the Securities Administrator shall have been
supplied with an Opinion of Counsel (such Opinion of Counsel not to be an
expense of the Trustee, the Master Servicer and the Securities Administrator),
to the effect that the holding by the Issuing Entity of such Mortgaged Property
subsequent to such three-year period or extension will not result (i) in the
imposition of taxes on "prohibited transactions" of the Issuing Entity or any of
the REMICs provided for herein as defined in section 860F of the Code or in the
imposition of any other federal or state tax on the Issuing Entity or any of the
REMICs provided for herein or (ii) cause any of the REMICs provided for herein
to fail to qualify as a REMIC at any time that any Certificates are outstanding,
in which case the Issuing Entity may continue to hold such Mortgaged Property
(subject to any conditions contained in such Opinion of Counsel).
-167-
If such an extension has not been received and the Depositor or a Servicer,
acting on behalf of the Issuing Entity hereunder, is unable to sell the REO
Property within 33 months after its acquisition by the Issuing Entity or if such
an extension, has been received and the Depositor or the Servicer is unable to
sell the REO Property within the period ending three months before the close of
the Extended Period, the Depositor shall cause the Servicer, before the end of
the three year period or the Extended Period, as applicable, to (i) purchase
such REO Property at a price equal to the REO Property's fair market value or
(ii) auction the REO Property to the highest bidder (which may be the Servicer)
in an auction reasonably designed to produce a fair price prior to the
expiration of the three-year period or the Extended Period, as the case may be.
Notwithstanding any other provision of this Agreement, no Mortgaged
Property acquired by the Issuing Entity shall be held, rented (or allowed to
continue to be rented) or otherwise used for the production of income by or on
behalf of the Issuing Entity in such a manner or pursuant to any terms that
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of section 860G(a)(8) of the Code or (ii) subject
the Issuing Entity or any REMIC provided for herein to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under section 860G(c) of the Code or otherwise, unless Wilshire or the
Depositor has agreed to indemnify and hold harmless the Issuing Entity with
respect to the imposition of any such taxes.
The decision of Wilshire to foreclose on a defaulted Mortgage Loan shall be
subject to a determination by Wilshire that the proceeds of such foreclosure are
expected to exceed the costs and expenses of bringing such a proceeding. The
income earned from the management of any Mortgaged Properties acquired through
foreclosure or other judicial proceeding, net of reimbursement to Wilshire for
expenses incurred (including any property or other taxes) in connection with
such management and net of unreimbursed Servicing Fees, Advances, Servicing
Advances and any management fee paid or to be paid with respect to the
management of such Mortgaged Property, shall be applied to the payment of
principal of, and interest on, the related defaulted Mortgage Loans (with
interest accruing as though such Mortgage Loans were still current) and all such
income shall be deemed, for all purposes in this Agreement, to be payments on
account of principal and interest on the related Mortgage Notes and shall be
deposited into the applicable Collection Account. To the extent the income
received during a Prepayment Period is in excess of the amount attributable to
amortizing principal and accrued interest at the related Mortgage Interest Rate
on the related Mortgage Loan, such excess shall be considered to be a partial
Principal Prepayment for all purposes hereof.
The Liquidation Proceeds from any liquidation of a Mortgage Loan, net of
any payment to Wilshire as provided above, shall be deposited in the applicable
Collection Account on the next succeeding Determination Date following receipt
thereof for distribution on the related Distribution Date.
The proceeds of any Liquidated Loan, as well as any recovery resulting from
a partial collection of Liquidation Proceeds will be applied as between the
parties in the following order of priority: first, to reimburse Wilshire for any
related Servicing Advances and unpaid Servicing Fees, pursuant to Section
13.08(a)(vi) or this Section 13.12; second, to reimburse Wilshire for any
unreimbursed Advances, pursuant to Section 13.08(a)(ii) or this Section 13.12;
third, to accrued and unpaid interest (to the extent no Advance has been made
for such amount) on the Mortgage Loan, at the Net Mortgage Rate to the Due Date
occurring in the month in which such
-168-
amounts are required to be distributed; fourth, as a recovery of principal of
the Mortgage Loan; and fifth, to any Prepayment Charges.
The proceeds of any net income from an REO Property, will be applied as
between the parties in the following order of priority: first, to reimburse
Wilshire for any related unreimbursed Servicing Advances and Servicing Fees,
pursuant to Section 13.08(a)(vi) or this Section 13.12; second, to reimburse
Wilshire for any unreimbursed Advances, pursuant to Section 13.08(a)(ii) or this
Section 13.12; third, as a recovery of principal; and fourth, to accrued and
unpaid interest (to the extent no Advance has been made for such amount) on the
related REO Property, at the applicable Net Mortgage Rate to the Due Date
occurring in the month in which such amounts are required to be distributed.
(b) On each Determination Date, Wilshire shall determine the respective
aggregate amounts of Excess Proceeds, if any, that occurred in the related
Prepayment Period.
(c) [Reserved].
(d) With respect to such of the Mortgage Loans as come into and continue in
default, Wilshire will decide, in its reasonable business judgment, whether to
(i) foreclose upon the Mortgaged Properties securing those Mortgage Loans
pursuant to Section 13.12(a), (ii) write off the unpaid principal balance of the
Mortgage Loans as bad debt (provided that Wilshire has determined that no net
recovery is likely through foreclosure proceedings or other liquidation of the
related Mortgaged Property), (iii) take a deed in lieu of foreclosure, (iv)
accept a short sale or short refinance; (v) arrange for a repayment plan, or
(vi) agree to a modification of such Mortgage Loan. As to any Mortgage Loan that
becomes 120 days delinquent, Wilshire will be required to have obtained or to
obtain a broker's price opinion, the cost of which will be reimbursable as a
Servicing Advance. After obtaining the broker's price opinion, Wilshire will
determine, in its reasonable business judgment, whether a net recovery is
possible through foreclosure proceedings or other liquidation of the related
Mortgage Property. If Wilshire determines that no such recovery is possible, it
must charge off the related Mortgage Loan at the time it becomes 180 days
delinquent. Once a Mortgage Loan has been charged off, the Servicer will
discontinue making Advances, Wilshire will not be entitled to future Servicing
Fees with respect to such Mortgage Loan except as provided below, and the
Mortgage Loan will be treated as a Liquidated Mortgage Loan. If Wilshire
determines that such net recovery is possible through foreclosure proceedings or
other liquidation of the related Mortgaged Property on a Mortgage Loan that
becomes 180 days delinquent, Wilshire need not charge off the Mortgage Loan and
may continue making Advances, Wilshire will continue to be entitled to Servicing
Fees and Wilshire will be required to notify the Master Servicer and the Trustee
of such decision.
(e) Any Mortgage Loan that is charged off, pursuant to (d) above, may
continue to be serviced by Wilshire for the Certificateholders using specialized
collection procedures (including foreclosure, if appropriate). Wilshire will be
entitled to Servicing Fees and reimbursement of expenses in connection with such
Mortgage Loans after the date of charge off, only to the extent of funds
available from any recoveries on any such Mortgage Loans. Any such Mortgage
Loans serviced in accordance with the specialized collection procedures shall be
serviced for approximately six months. Any net recoveries received on such
Mortgage Loans during such six month period will be treated as Subsequent
Recoveries. On the date which is six months after the date on which Wilshire
begins servicing such Mortgage Loans using the specialized
-169-
collection procedures, unless specific net recoveries are anticipated by
Wilshire on a particular Mortgage Loan, such charged off loan will be released
to the majority holder of the Class C Certificates and thereafter, (i) the
majority holder of the Class C Certificates will be entitled to any amounts
subsequently received in respect of any such released loans, (ii) the majority
holder of the Class C Certificates may designate any servicer to service any
such released loan and (iii) the majority holder of the Class C Certificates may
sell any such released loan to a third party.
Section 13.13 Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by Wilshire
of a notification that payment in full will be escrowed in a manner customary
for such purposes, Wilshire will promptly notify the Custodian by delivering a
Request for Release substantially in the form of Exhibit D. Wilshire is
authorized to cause the removal from the registration on the MERS System of any
such Mortgage if applicable, and Wilshire, on behalf of the Trustee shall
execute and deliver the request for reconveyance, deed of reconveyance or
release or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage together with the Mortgage Note with written evidence of cancellation
thereon. Expenses incurred by Wilshire in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Mortgagor to the
extent permitted by law, and otherwise to the Issuing Entity to the extent such
expenses constitute "unanticipated expenses" within the meaning of Treasury
Regulations Section 1.860G-(1)(b)(3)(ii). Subject to the further limitations set
forth below, Wilshire shall cause the Mortgage File or documents so released to
be returned to the Trustee or its designee when the need therefor by Wilshire no
longer exists, unless the Mortgage Loan is liquidated and the proceeds thereof
are deposited in the applicable Collection Account.
Each Request for Release may be delivered to the Trustee or the Custodian
(i) via mail or courier, (ii) via facsimile or (iii) by such other means,
including, without limitation, electronic or computer readable medium, as
Wilshire and the Trustee or the Custodian shall mutually agree.
If Wilshire at any time seeks to initiate a foreclosure proceeding in
respect of any Mortgaged Property as authorized by this Agreement, Wilshire may
deliver or cause to be delivered to the Trustee or the Custodian, for signature,
as appropriate or on behalf of the Trustee, execute any court pleadings,
requests for trustee's sale or other documents necessary to effectuate such
foreclosure or any legal action brought to obtain judgment against the Mortgagor
on the Mortgage Note or the Mortgage or to obtain a deficiency judgment or to
enforce any other remedies or rights provided by the Mortgage Note or the
Mortgage or otherwise available at law or in equity. Notwithstanding the
foregoing, Wilshire shall cause possession of any Mortgage File or of the
documents therein that shall have been released by the Trustee or the Custodian
to be returned to the Trustee or the Custodian promptly after possession thereof
shall have been released by the Trustee or the Custodian unless (i) the Mortgage
Loan has been liquidated and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in the applicable Collection Account, and Wilshire
shall have delivered to the Trustee or the Custodian a Request for Release in
the form of Exhibit D or (ii) the Mortgage File or document shall have been
delivered to an attorney or to a public trustee or other public official as
required by law for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property and Wilshire shall
have delivered to the Trustee or the Custodian an Officer's Certificate of a
Servicing Officer certifying as to the name and address of the Person to
-170-
which the Mortgage File or the documents therein were delivered and the purpose
or purposes of such delivery.
Wilshire shall have no liability for, and shall be excused from, any
non-performance hereunder to the extent such non-performance is solely and
directly caused by the failure of (i) the Custodian to release, in a manner
consistent with the terms of the Custodial Agreement, any Mortgage File
requested by Wilshire pursuant to a Request for Release (ii) or the Trustee to
execute the documents as requested by Wilshire pursuant to a request for the
execution of documents; provided, that any such Request for Release or request
for the execution of documents must specify the Mortgage File so requested for
release in sufficient detail, and with sufficient accuracy, to allow the
Custodian timely to perform its obligations under the Custodial Agreement in
connection with such Request for Release or request for the execution of
documents. The Custodian shall have no liability for any costs incurred by
Wilshire resulting from any failure of the Custodian, in connection with any
Request for Release or request for the execution of documents, to deliver any
Mortgage File in a manner consistent with the terms of the Custodial Agreement
to the extent such failure is solely and directly the result of insufficient
detail or insufficient accuracy in such Request for Release or request for the
execution of documents.
Section 13.14 Documents, Records and Funds in Possession of Servicer to be
Held for the Trustee.
All Mortgage Files and funds collected or held by, or under the control of,
Wilshire in respect of any Mortgage Loans, whether from the collection of
principal and interest payments or from Liquidation Proceeds, including but not
limited to, any funds on deposit in the applicable Collection Account, shall be
held by Wilshire for and on behalf of the Trustee and shall be and remain the
sole and exclusive property of the Issuing Entity, subject to the applicable
provisions of this Agreement. Wilshire also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
applicable Collection Account, the Master Servicer Collection Account, the
Distribution Account or in any Escrow Account, or any funds that otherwise are
or may become due or payable to the Master Servicer or the Securities
Administrator for the benefit of the Certificateholders, to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance, or
assert by legal action or otherwise any claim or right of set off against any
Mortgage File or any funds collected on, or in connection with, a Mortgage Loan,
except, however, that Wilshire shall be entitled to set off against and deduct
from any such funds any amounts that are properly due and payable to Wilshire
under this Agreement.
Section 13.15 Servicing Compensation.
As compensation for its activities hereunder, Wilshire shall be entitled to
retain or withdraw from the Collection Accounts out of each payment of interest
on a Mortgage Loan included in the Trust Fund an amount equal to interest at the
applicable Servicing Fee Rate on the Stated Principal Balance of the related
Mortgage Loan as of the immediately preceding Distribution Date.
Additional servicing compensation in the form of any Excess Proceeds, late
payment fees, assumption fees (i.e. fees related to the assumption of a Mortgage
Loan upon the purchase
-171-
of the related Mortgaged Property) modification fees, extension fees and similar
fees payable by the Mortgagor, and all income and gain net of any losses
realized from Permitted Investments, together with other benefits received from
amounts in the Collection Accounts, shall be retained by Wilshire to the extent
not required to be deposited in the applicable Collection Account pursuant to
Sections 13.05, or 13.12(a) hereof. Wilshire shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided in this Agreement. In no event shall the Master Servicer be liable for
any Servicing Fee or for any differential between the Servicing Fee and the
amount necessary to induce a successor servicer to act as successor servicer
under this Agreement.
Section 13.16 [Reserved.]
Section 13.17 Subordination of Liens.
In connection with any governmental program under which a Mortgagor may
obtain a benefit in the event the related Mortgaged Property is subject to a
disaster provided that the Mortgagor files a covenant or other lien against the
Mortgaged Property and is required to obtain the subordination thereto of the
Mortgage, Wilshire may cause such subordination to be executed and filed
provided that either (i) the related Mortgage Loan is in default or default with
respect to such Mortgage Loan is reasonably foreseeable or (ii) such
subordination and participation in such governmental program will not result in
a change in payment expectations with respect to such Mortgage Loan. For
purposes of the preceding sentence, a change in payment expectations occurs if,
as a result of such subordination and participation in such governmental
program, (1) there is a substantial enhancement of the Mortgagor's capacity to
meet the payment obligations under the Mortgage Loan and that capacity was
primarily speculative prior to such subordination and participation in such
governmental program and is adequate after such subordination and participation
in such governmental program or (2) there is a substantial impairment of the
Mortgagor's capacity to meet the payment obligations under the Mortgage Loan and
that capacity was adequate prior to such subordination and participation in such
governmental program and is primarily speculative after such subordination and
participation in such governmental program. The preceding sentence and clause
(ii) of the second preceding sentence are intended to comply with Treasury
Regulations Section 1.1001-3(e)(4) and shall be interpreted in accordance
therewith.
Section 13.18 Information to the Master Servicer.
No later than the tenth (10th) calendar day of each month, Wilshire shall
forward to the Master Servicer reports in the format set forth in Exhibit U-1,
Exhibit U-2 and Exhibit U-3 hereto (or such other format, with respect to
Exhibit U-1 and Exhibit U-2, as mutually agreed by Wilshire and the Master
Servicer), with respect to monthly remittances, defaulted Mortgage Loans and
realized loss calculations, respectively.
Section 13.19 Indemnification.
Wilshire shall indemnify the Sponsor, the Issuing Entity, the Master
Servicer, the Depositor, the Trustee and their officers, directors, employees
and agents and hold each of them harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and
-172-
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that any of such parties may sustain in any way related to the
negligence, willful misfeasance or bad faith of Wilshire in the performance of
its duties or by reason of reckless disregard of its obligations and duties
hereunder. Wilshire promptly shall notify the Sponsor, the Master Servicer, the
Trustee and the Depositor or any other relevant party if a claim is made by a
third party with respect to such party and this Agreement or the Mortgage Loans
and, if subject to this indemnification obligation, assume (with the prior
written consent of the indemnified party, which consent shall not be
unreasonably withheld or delayed) the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
any of such parties in respect of such claim. Wilshire shall provide the
Depositor and the Master Servicer with a written report of all expenses and
advances incurred by Wilshire pursuant to this 13.19, and Wilshire shall
promptly reimburse itself from the assets of the Issuing Entity in the
applicable Collection Account for all amounts advanced by it pursuant to the
preceding sentence except when and to the extent a determination has been made
that the claim in any way relates to the gross negligence, bad faith or willful
misconduct of Wilshire. The provisions of this paragraph shall survive the
termination of this Agreement and the payment of the outstanding Certificates.
Section 13.20 Solicitation.
Wilshire may solicit or refer to a mortgage originator, who may or may not
be an affiliate of the Depositor or Wilshire, any Mortgagor for refinancing or
otherwise take action to encourage refinancing.
Section 13.21 High Cost Mortgage Loans.
In the event that Wilshire reasonably determines that a Mortgage Loan may
be a "high cost mortgage loan," "high cost home," "covered," "high cost," "high
risk home," "predatory" or similarly classified loan under any applicable state,
federal or local law, Wilshire may notify the Depositor and the Master Servicer
thereof; Wilshire may terminate its servicing thereof; and such determination
shall be deemed to materially and adversely affect the interests of the
Certificateholders in such Mortgage Loan, and the related Transferor or the
Sponsor will repurchase the Mortgage Loan within a 30 day period from the date
of the notice in the manner described in Section 2.04.
Section 13.22 Advances.
(a) Subject to the conditions of this Article 13, Wilshire, as required
below, shall make an Advance and deposit such Advance in the Collection Account.
Each such Advance shall be remitted to the Collection Account no later than 4:00
p.m. Eastern time, on the Servicer Remittance Date in immediately available
funds. Wilshire shall be obligated to make any such Advance only to the extent
that such advance would not be a Non-Recoverable Advance. If Wilshire shall have
determined that it has made a Non-Recoverable Advance or that a proposed Advance
or a lesser portion of such Advance would constitute a Non-Recoverable Advance,
Wilshire shall deliver (i) to the Master Servicer for the benefit of the
Certificateholders, funds constituting the remaining portion of such Advance, if
applicable, and (ii) to the Master Servicer an Officer's Certificate setting
forth the basis for such determination. Wilshire may, in its sole discretion,
make an Advance with respect to the principal portion of the final Scheduled
Payment
-173-
on a Balloon Loan, but Wilshire is under no obligation to do so; provided,
however, that nothing in this sentence shall affect Wilshire's obligation under
this Section 13.22 to advance the interest portion of the final Scheduled
Payment with respect to a Balloon Loan based on the Minimum Payment. If a
Mortgagor does not pay its final Scheduled Payment on a Balloon Loan when due,
Wilshire shall advance (unless it determines in its good faith judgment that
such amounts would constitute a Non-Recoverable Advance) a full month of
interest (net of the Servicing Fee) on the Stated Principal Balance thereof
based on the Minimum Payment each month until its Stated Principal Balance is
reduced to zero.
In lieu of making all or a portion of such Advance from its own funds,
Wilshire may (i) cause to be made an appropriate entry in its records relating
to the applicable Collection Account that any amount held for future
distribution has been used by the Servicer in discharge of its obligation to
make any such Advance and (ii) transfer such funds from the applicable
Collection Account to the Master Servicer Collection Account. In addition,
Wilshire shall have the right to reimburse itself for any such Advance from
amounts held from time to time in the applicable Collection Account to the
extent such amounts are not then required to be distributed. Any funds so
applied and transferred pursuant to the previous two sentences shall be replaced
by Wilshire by deposit in the applicable Collection Account no later than the
close of business on the Servicer Remittance Date on which such funds are
required to be distributed pursuant to this Agreement. Wilshire shall be
entitled to be reimbursed from the applicable Collection Account for all
Advances of its own funds made pursuant to this Section as provided in Section
13.08. The obligation to make Advances with respect to any Mortgage Loan shall
continue until the earlier of (i) such Mortgage Loan is paid in full, (ii) the
related Mortgaged Property or related REO Property has been liquidated or until
the purchase or repurchase thereof (or substitution therefor) from the Master
Servicer, the Securities Administrator or the Issuing Entity pursuant to any
applicable provision of this Agreement, except as otherwise provided in this
Section 13.22, (iii) Wilshire determines in its good faith judgment that such
amounts would constitute a Non-Recoverable Advance as provided in the preceding
paragraph or (iv) the date on which such Mortgage Loan becomes 150 days
delinquent as set forth below.
(b) Notwithstanding anything in this Agreement to the contrary (including,
but not limited to, Sections 13.01 and 13.22(a) hereof), no Advance or Servicing
Advance shall be required to be made hereunder by Wilshire if such Advance or
Servicing Advance would, if made, constitute a Non-Recoverable Advance or a
Non-Recoverable Servicing Advance. The determination by Wilshire that it has
made a Non-Recoverable Advance or a Non-Recoverable Servicing Advance or that
any proposed Advance or Servicing Advance, if made, would constitute a
Non-Recoverable Advance or a Non-Recoverable Servicing Advance, respectively,
shall be evidenced by an Officer's Certificate of Wilshire delivered to the
Master Servicer. In addition, Wilshire shall not be required to advance any
Relief Act Shortfalls.
(c) Notwithstanding the foregoing, Wilshire shall not be required to make
any Advances for any Mortgage Loan after such Mortgage Loan becomes 150 days
Delinquent. Wilshire shall identify such Delinquent Mortgage Loans in the
servicing reports referenced in Section 13.18. In addition, Wilshire shall
provide the Master Servicer with an Officer's Certificate listing such
delinquent Mortgage Loans and certifying that such loans are 150 days or more
delinquent.
-174-
Section 13.23 Reduction of Servicing Compensation in Connection with
Prepayment Interest Shortfalls.
In the event that any Mortgage Loan is the subject of a Prepayment Interest
Shortfall, Wilshire shall, from amounts in respect of the Servicing Fee for such
Distribution Date, deposit into the applicable Collection Account, as a
reduction of the Servicing Fee for such Distribution Date, no later than the
Servicer Remittance Date immediately preceding such Distribution Date, an amount
up to the Prepayment Interest Shortfall for Mortgage Loans paid in full between
the 15th day and the last day of a month; provided that the amount so deposited
with respect to any Distribution Date shall be limited to the product of (x) one
twelfth of 0.1875% per annum and (y) the aggregate Stated Principal Balance of
the Mortgage Loans. In case of such deposit, Wilshire shall not be entitled to
any recovery or reimbursement from the Depositor, the Trustee, the Issuing
Entity or the Certificateholders. With respect to any Distribution Date, to the
extent that the Prepayment Interest Shortfall exceeds Compensating Interest
(such excess, a "Non-Supported Interest Shortfall"), such Non-Supported Interest
Shortfall shall reduce the Current Interest with respect to each Class of
Certificates, pro rata based upon the amount of interest each such Class would
otherwise be entitled to receive on such Distribution Date. Notwithstanding the
foregoing, there shall be no reduction of the Servicing Fee in connection with
Prepayment Interest Shortfalls related to the Relief Act or bankruptcy
proceedings and Wilshire shall not be obligated to pay a Compensating Interest
Payment with respect to Prepayment Interest Shortfalls related to the Relief Act
or bankruptcy proceedings.
Section 13.24 Special Servicing Agreements.
Wilshire may enter into a special servicing advisory agreement with a
holder of the Class C Certificate and/or one or more other class of subordinated
certificates issued by the Issuing Entity or of a net interest margin trust
holding certificates issued by the Issuing Entity and/or an advisor designated
by the holder of the Class C Certificate. Pursuant to such agreement, Wilshire
may provide such holder or advisor, in its capacity as special servicing
advisor, with loan-level information with respect to the Mortgage Loans, and the
holder of the Class C Certificate or the special servicing advisor designated by
the holder of the Class C Certificate may advise Wilshire with respect to the
commencement of foreclosure proceedings or other actions to liquidate such
Mortgage Loans and/or any other efforts to maximize recoveries with respect to
such Mortgage Loans
ARTICLE XIV
THE DEPOSITOR AND THE COMPANY
Section 14.01 Respective Liabilities of the Depositor and Wilshire.
The Depositor and Wilshire shall each be liable in accordance herewith only
to the extent of the obligations specifically and respectively imposed upon and
undertaken by them herein.
Section 14.02 Merger or Consolidation of the Depositor or Wilshire.
Except as provided in the next paragraph, the Depositor and Wilshire will
each keep in full effect its existence, rights and franchises as a corporation
or banking association under the laws of the United States or under the laws of
one of the States thereof and will each obtain and
-175-
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, or any of the Mortgage Loans and
to perform its respective duties under this Agreement.
Any Person into which the Depositor or Wilshire may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or Wilshire shall be a party, or any Person succeeding to the
business of the Depositor or Wilshire, shall be the successor of the Depositor
or Wilshire, as the case may be, hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding (except for the execution of an
assumption agreement where such succession is not effected by operation of law);
provided, however, that the successor or surviving Person to such Servicer shall
be qualified to sell mortgage loans to, or to service mortgage loans on behalf
of, Xxxxxx Xxx or Xxxxxxx Mac.
Section 14.03 Limitation on Liability of the Depositor, Wilshire and
Others.
None of the Depositor, Wilshire nor any of the directors, officers,
employees or agents of the Depositor or Wilshire shall be under any liability to
the Indemnified Persons, Issuing Entity 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 Depositor, Wilshire or any such Person against
any breach of representations or warranties made by it herein or protect the
Depositor, Wilshire or any such Person from any liability that would otherwise
be imposed by reasons of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor and Wilshire and any director, officer, employee
or agent of the Depositor and Wilshire 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 Depositor or Wilshire and any director,
officer, employee or agent of the Depositor or Wilshire shall be indemnified by
the Issuing Entity and held harmless against any loss, liability or expense,
incurred in connection with the performance of their duties under this Agreement
or incurred in connection with any audit, controversy or judicial proceeding
relating to a governmental taxing authority or any legal action relating to this
Agreement or the Certificates, other than any loss, liability or expense (i)
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder or (ii) which does not constitute an
"unanticipated expense" within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii). Neither the Depositor nor Wilshire shall be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and that in its opinion may
involve it in any expense or liability; provided, however, that either of the
Depositor or Wilshire in its discretion may undertake any such action that it
may deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties hereto and the interests of the Securities Administrator
and the Certificateholders hereunder. In such event, the legal expenses and
costs of such action and any liability resulting therefrom shall be, expenses,
costs and liabilities of the Issuing Entity, and the Depositor and Wilshire
shall be entitled to be reimbursed therefor out of the Collection Accounts as
provided by Section 13.08 hereof.
Section 14.04 Limitation on Resignation of Company.
-176-
Wilshire shall not resign from the obligations and duties hereby imposed on
it except upon determination that its duties hereunder are no longer permissible
under applicable law. Any such determination permitting the resignation of
Wilshire shall be evidenced by an Opinion of Counsel to such effect delivered to
the Master Servicer. No such resignation shall become effective until the Master
Servicer or a successor servicer reasonably acceptable to the Master Servicer is
appointed and has assumed Wilshire's responsibilities, duties, liabilities and
obligations hereunder. Any such resignation shall not relieve Wilshire of any of
the obligations specified in Section 15.01 and 15.02 as obligations that survive
the resignation or termination of Wilshire.
Section 14.05 Errors and Omissions Insurance; Fidelity Bonds.
Wilshire shall, for so long as it acts as servicer under this Agreement,
obtain and maintain in force (a) a policy or policies of insurance covering
errors and omissions in the performance of its obligations as servicer
hereunder, and (b) a fidelity bond in respect of its officers, employees and
agents. Each such policy or policies and bond shall, together, comply with the
requirements from time to time of Xxxxxx Xxx or Xxxxxxx Mac for Wilshire.
Wilshire shall provide the Master Servicer, upon request, with copies of such
policies and fidelity bond or a certification from the insurance provider
evidencing such policies and fidelity bond. In the event that any such policy or
bond ceases to be in effect, Wilshire shall use its reasonable commercial
efforts to obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement.
ARTICLE XV
DEFAULT; TERMINATION OF A SERVICER
Section 15.01 Servicer Events of Default.
"Servicer Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by Wilshire to deposit in the applicable Collection
Account, Master Servicer Collection Account or the Distribution Account or
remit to the Master Servicer (a) any payment (excluding Advances) required
to be made under the terms of this Agreement, which failure shall continue
unremedied for three (3) Business Days or (b) Advances required to be made
under Section 13.22 hereof, which failure shall continue unremedied as of
3:00 p.m. New York City Time on the Distribution Account Deposit Date; or
(ii) any failure by Wilshire to observe or perform in any material
respect any other of the covenants or agreements on the part of such party
contained in this Agreement or any representation or warranty shall prove
to be untrue, which failure or breach shall continue unremedied for a
period of 60 days after the date on which written notice of such failure
shall have been given such party by the Master Servicer; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the
-177-
winding-up or liquidation of its affairs, shall have been entered against
Wilshire and such decree or order shall have remained in force undischarged
or unstayed for a period of 60 consecutive days; or
(iv) consent by Wilshire to the appointment of a receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings of or relating to Wilshire or all or
substantially all of the property of such party; or
(v) admission by Wilshire in writing of its inability to pay its debts
generally as they become due, file a petition to take advantage of, or
commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vi) (a) Any failure by Wilshire, any Subservicer or any Subcontractor
to deliver any information, report, certification or accountants' letter
when and as required under Section 16.04, 16.05 or 16.06, which continues
unremedied for a period of fourteen calendar days after the date upon which
written notice of such failure, requiring the same to be remedied, shall
have been given to Wilshire, (b) any failure by Wilshire to identify
pursuant to Section 16.06(b) any Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, or
(c) any failure by Wilshire, any Subservicer or any Subcontractor to
deliver any information, report or Exchange Act disclosure items, when and
as required under Section 16.03 of this Agreement, shall, constitute an
Event of Default with respect to Wilshire under this Agreement, and shall
entitle the Master Servicer and/or the Depositor, as applicable, to
terminate the rights and obligations of Wilshire as servicer in accordance
with the provisions of Section 15.01 hereof; provided that to the extent
that any provision of this Agreement expressly provides for the survival of
certain rights or obligations following termination of Wilshire as
servicer, such provision shall be given effect.
If a Servicer Event of Default shall occur with respect to Wilshire
pursuant to subsection (i) of this Section 15.01, the Master Servicer shall by
notice in writing to Wilshire (with a copy to each Rating Agency), terminate all
of the rights and obligations of Wilshire under this Agreement and in and to the
Mortgage Loans and the proceeds thereof. If a Servicer Event of Default shall
occur with respect to Wilshire pursuant to subsection (ii) - (vi) of this
Section 15.01, then, and in each and every such case, so long as such Servicer
Event of Default shall not have been remedied within the applicable grace
period, if any, the Master Servicer may, by notice in writing to Wilshire (with
a copy to each Rating Agency), terminate all of the rights and obligations of
Wilshire under this Agreement and in and to the Mortgage Loans and the proceeds
thereof. On or after the receipt by Wilshire of any such written notice, all
authority and power of Wilshire hereunder, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Master Servicer. To the
extent the Servicer Event of Default resulted from the failure of Wilshire to
make a required Advance, the Master Servicer shall thereupon make any Advance
described in Section 13.22 hereof subject to Section 13.04 hereof. The Master
Servicer is hereby authorized and empowered to execute and deliver, on behalf
Wilshire, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
-178-
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of Wilshire to pay
amounts owed pursuant to Article XIII. Wilshire agrees to cooperate with the
Master Servicer in effecting the termination of Wilshire's responsibilities and
rights hereunder, including, without limitation, the transfer to the Master
Servicer of all cash amounts which shall at the time be credited to the
Collection Accounts, or thereafter be received with respect to the Mortgage
Loans. Wilshire and the Master Servicer shall promptly notify the Rating
Agencies of the occurrence of a Servicer Event of Default or an event that, with
notice, passage of time, other action or any combination of the foregoing would
be a Servicer Event of Default, such notice to be provided in any event within
two Business Days of such occurrence.
Notwithstanding any termination of the activities of Wilshire hereunder,
Wilshire shall be entitled to receive, out of any late collection of a Scheduled
Payment on a Mortgage Loan that was due prior to the notice terminating
Wilshire's rights and obligations as a Servicer hereunder and received after
such notice, that portion thereof to which Wilshire would have been entitled
pursuant to Section 13.08(a), and any other amounts payable to Wilshire
hereunder the entitlement to which arose prior to the termination of its
activities hereunder. Notwithstanding anything herein to the contrary, upon
termination of Wilshire hereunder, any liabilities of Wilshire which accrued
prior to such termination shall survive such termination.
-179-
Section 15.02 Master Servicer to Act; Appointment of Successor.
On and after the time Wilshire receives a notice of termination pursuant to
Section 15.01 hereof, the Master Servicer shall, when and to the extent provided
in Section 13.04, be the successor to Wilshire in its capacity as servicer under
this Agreement and the transactions set forth or provided for herein and shall
be subject to all the responsibilities, duties and liabilities relating thereto
placed on Wilshire by the terms and provisions hereof and applicable law
including the obligation to make advances pursuant to Section 13.22. As
compensation therefor, subject to the last paragraph of Section 15.01, the
Master Servicer shall be entitled to all fees, compensation and reimbursement
for costs and expenses that Wilshire would have been entitled to hereunder if
Wilshire had continued to act hereunder. Notwithstanding the foregoing, if the
Master Servicer has become the successor to Wilshire in accordance with Section
15.01 hereof, the Master Servicer may, if it shall be unwilling to so act, or
shall, if it is prohibited by applicable law from making Advances pursuant to
Section 13.22 hereof or if it is otherwise unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution as the successor to Wilshire hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
Wilshire hereunder. Any successor to Wilshire shall be an institution that is a
Xxxxxx Xxx and Xxxxxxx Mac approved seller/servicer in good standing, that has a
net worth of at least $15,000,000, and that is willing to service the Mortgage
Loans and executes and delivers to the Master Servicer an agreement accepting
such delegation and assignment, that contains an assumption by such Person of
the rights, powers, duties, responsibilities, obligations and liabilities of
Wilshire (other than liabilities of the Servicer under Section 14.03 hereof
incurred prior to termination of the Servicer under Section 15.01), with like
effect as if originally named as a party to this Agreement. No appointment of a
successor to Wilshire hereunder shall be effective until the Master Servicer
shall have consented thereto and written notice of such proposed appointment
shall have been provided by the Master Servicer to each Certificateholder. The
Master Servicer shall not resign as servicer until a successor servicer has been
appointed and has accepted such appointment. Pending appointment of a successor
to Wilshire hereunder, the Master Servicer, unless the Master Servicer is
prohibited by law from so acting, shall, subject to Section 13.04 hereof, act in
such capacity as hereinabove provided. In connection with such appointment and
assumption, the Master Servicer may make such arrangements for the compensation
of such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in excess of
that permitted Wilshire hereunder. The Master Servicer and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Neither the Master Servicer nor any other
successor servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
Wilshire to deliver or provide, or any delay in delivering or providing, any
cash, information, documents or records to it.
Any successor to Wilshire as servicer shall give notice to the Mortgagors
of such change of servicer and shall, during the term of its service as servicer
maintain in force the policy or policies that Wilshire is required to maintain
pursuant to Section 14.05.
ARTICLE XVI
COMPLIANCE WITH REGULATION AB
-180-
Section 16.01 Intent of the Parties; Reasonableness.
The Master Servicer and Wilshire acknowledge and agree that the purpose of
Article XVI of this Agreement is to facilitate compliance by the Master Servicer
and the Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Neither the Master Servicer nor the Depositor
shall exercise its right to request delivery of information or other performance
under these provisions other than in good faith, or for purposes other than
compliance with the Securities Act, the Exchange Act and the rules and
regulations of the Commission thereunder. Wilshire acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with requests made by the Master
Servicer or the Depositor in good faith for delivery of information required
under these provisions on the basis of evolving interpretations of Regulation
AB. Wilshire shall cooperate reasonably with the Master Servicer to deliver to
the Securities Administrator, the Master Servicer (including any of its
assignees or designees) and the Depositor, any and all statements, reports,
certifications, records and any other information necessary to permit the
Securities Administrator, the Master Servicer or the Depositor to comply with
the provisions of Regulation AB, together with such disclosures relating to
Wilshire, any Subservicer, or the servicing of the Mortgage Loans, to be
necessary in order to effect such compliance. Wilshire shall not be required to
comply with this Article XVI with respect to any fiscal year as to which
Wilshire was not servicing Mortgage Loans hereunder to the extent that the
Depositor determines that compliance is not required by law after the Form 15
Suspension Notification is filed.
Section 16.02 Subservicing Agreements. Wilshire shall deliver to the Master
Servicer a copy of any subservicing agreement executed by Wilshire. The Master
Servicer agrees that it will keep any such subservicing agreement confidential.
Wilshire may redact any such subservicing agreements prior to delivery to remove
any fees paid to any subservicers.
Section 16.03 Information to Be Provided by Wilshire.
Wilshire shall, as promptly as practicable following notice to or discovery
by Wilshire, provide to the Master Servicer and the Depositor (in writing and in
form and substance reasonably satisfactory to the Master Servicer and the
Depositor) the information specified in paragraph (a) of this Section.
(a) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, Wilshire
shall (or shall cause each Subservicer to) (i) provide prompt notice to the
Master Servicer and the Depositor in writing of (A) any material litigation or
governmental proceedings involving such Servicer or any Subservicer, (B) any
affiliations or relationships as set forth in Items 1119(b) and (c) of
Regulation AB that develop following the Closing Date between Wilshire, any
Subservicer or and any of the parties specified in Item 1119 of Regulation AB,
(C) any Servicer Event of Default under the terms of this Agreement, (D) any
merger, consolidation or sale of substantially all of the assets of Wilshire,
and (E) Wilshire's entry into an agreement with a Subservicer to perform or
assist in the performance of any of Wilshire's obligations under this Agreement
and (ii) provide to the Master Servicer and the Depositor a description of such
proceedings, affiliations or relationships, as set forth in Sections 1119(b) and
(c) of Regulation AB.
-181-
(b) As a condition to the succession to Wilshire or any Subservicer as
servicer or subservicer under this Agreement by any Person (i) into which
Wilshire or such Subservicer may be merged or consolidated, or (ii) which may be
appointed as a successor to Wilshire or any Subservicer, Wilshire shall provide
to the Master Servicer and the Depositor, at least 15 calendar days prior to the
effective date of such succession or appointment, (x) written notice to the
Master Servicer and the Depositor of such succession or appointment and (y) in
writing and in form and substance reasonably satisfactory to the Master Servicer
and the Depositor, all information reasonably requested by the Master Servicer
or the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to any class of asset-backed securities.
(c) In addition to such information as Wilshire, as servicer, is obligated
to provide pursuant to other provisions of this Agreement, not later than ten
days prior to the deadline for the filing of any distribution report on Form
10-D in respect of the securitization transaction, Wilshire or such Subservicer,
as applicable, shall, to the extent the applicable party has knowledge, provide
to the party responsible for filing such report (including, if applicable, the
Master Servicer) notice of the occurrence of any of the following events that
have not already been disclosed to such party through Wilshire's prior notice or
regular servicing data along with all information, data, and materials related
thereto as may be required to be included in the related distribution report on
Form 10-D (as specified in the provisions of Regulation AB referenced below):
(i) any material modifications, extensions or waivers of pool asset
terms, fees, penalties or payments during the distribution period or that
have cumulatively become material over time (Item 1121(a)(11) of Regulation
AB); and
(ii) material breaches of pool asset representations or warranties or
transaction covenants (Item 1121(a)(12) of Regulation AB).
(d) Wilshire shall provide to the Master Servicer and the Depositor,
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and Errors and
Omission Insurance policy, financial information and reports as required
pursuant to this Agreement, and, upon reasonable request, such other information
related to Wilshire or any Subservicer or Wilshire or such Subservicer's
performance hereunder.
Section 16.04 Servicer Compliance Statement.
On or before March 1 of each calendar year, commencing in 2008, Wilshire
shall deliver to the Master Servicer and the Depositor a statement of compliance
addressed to the Master Servicer and the Depositor and signed by an authorized
officer of such Servicer, to the effect that (i) a review of such Servicer's
activities during the immediately preceding calendar year (or applicable portion
thereof) and of its performance under this Agreement during such period has been
made under such officer's supervision, and (ii) to the best of such officers'
knowledge, based on such review, such Servicer has fulfilled all of its
obligations under this Agreement in all material respects throughout such
calendar year (or applicable portion thereof) or, if there has been a failure to
fulfill any such obligation in any material respect, specifically identifying
each such failure known to such officer and the nature and the status thereof.
-182-
Section 16.05 Report on Assessment of Compliance and Attestation.
(a) On or before March 1, of each calendar year, commencing in 2008,
Wilshire shall:
(i) deliver to the Master Servicer and the Depositor a report (in form
and substance reasonably satisfactory to the Master Servicer and the
Depositor) regarding such Servicer's assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year, as
required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to the Master Servicer and
the Depositor and signed by an authorized officer of such Servicer, and
shall address each of the "Applicable Servicing Criteria" specified on
Exhibit V hereto, and solely for the purpose of Section 1122(d)(3)(iii) of
Exhibit V, the term "investor" shall mean the Master Servicer;
(ii) deliver to the Master Servicer and the Depositor a report of a
registered public accounting firm reasonably acceptable to the Master
Servicer and the Depositor that attests to, and reports on, the assessment
of compliance made by such Servicer and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules 1 02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act and the Exchange
Act;
(iii) cause each Subservicer, and each Subcontractor determined by
such Servicer pursuant to Section 16.06(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, if
any, and deliver to the Master Servicer and the Depositor an assessment of
compliance and accountants' attestation as and when provided in paragraphs
(a) and (b) of this Section; and
(iv) deliver, and cause each Subservicer and Subcontractor described
in clause (iii), if any, to provide, to the Depositor, the Master Servicer
and any other Person that will be responsible for signing the certification
(a "Sarbanes Certification"), required by Rules 13a-14(d) and 15d-14(d)
under the Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act
of 2002) on behalf of an asset-backed issuer with respect to the
securitization transaction a certification, signed by the appropriate
officer of such Servicer, in the form attached hereto as Exhibit M.
Wilshire acknowledges that the parties identified in clause (a)(iv) above
may rely on the certification provided by each Servicer pursuant to such clause
in signing a Sarbanes Certification and filing such with the Commission.
(b) Each assessment of compliance provided by a Subservicer pursuant to
Section 16.05(a)(iii) shall address each of the Servicing Criteria specified on
a certification substantially in the form of Exhibit V hereto delivered to the
Master Servicer concurrently with the execution of this Agreement or, in the
case of a Subservicer subsequently appointed as such, on or prior to the date of
such appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 16.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Servicer pursuant to Section 16.06.
-183-
Section 16.06 Use of Subservicers and Subcontractors.
Wilshire shall not hire or otherwise utilize the services of any
Subservicer that is required to provide an Assessment of Compliance to fulfill
any of the obligations of Wilshire as servicer under this Agreement unless
Wilshire complies with the provisions of paragraph (a) of this Section. Wilshire
shall not hire or otherwise utilize the services of any Subcontractor that is
required to provide an Assessment of Compliance, and shall not permit any
Subservicer to hire or otherwise utilize the services of any Subcontractor that
is required to provide an Assessment of Compliance to fulfill any of the
obligations of Wilshire as servicer under this Agreement unless the Servicer
complies with the provisions of paragraph (b) of this Section.
(a) It shall not be necessary for Wilshire to seek the consent of the
Securities Administrator, the Master Servicer or the Depositor to the
utilization of any Subservicer. Wilshire shall cause any Subservicer used by the
Servicer (or by any Subservicer) for the benefit of the Master Servicer and the
Depositor to comply with the provisions of this Section and with Sections
16.03(b), (c) and (d), 16.04, 16.05 and 16.07 of this Agreement to the same
extent as if such Subservicer were Wilshire, and to provide the information
required with respect to such Subservicer under Section 16.03(d) of this
Agreement. Wilshire shall be responsible for obtaining from each such
Subservicer and delivering to the Master Servicer and the Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
16.04, any assessment of compliance and attestation required to be delivered by
such Subservicer under Section 16.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 16.05 as and when required to be delivered.
(b) It shall not be necessary for Wilshire to seek the consent of the
Securities Administrator, the Master Servicer or the Depositor to the
utilization of any Subcontractor. Wilshire shall promptly upon request provide
to the Master Servicer and the Depositor (or any designee of the Depositor, such
as an administrator) a written description (in form and substance reasonably
satisfactory to the Depositor and the Master Servicer) of the role and function
of each such Subcontractor utilized by Wilshire or any Subservicer, specifying
(i) the identity of each such Subcontractor, (ii) which (if any) of such
Subcontractors are "participating in the servicing function" within the meaning
of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be (x) addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph or (y)
provided by Wilshire in accordance with Regulation AB telephone interpretation
17.06.
As a condition to the utilization of any Subcontractor determined by
Wilshire to be "participating in the servicing function" within the meaning of
Item 1122 of Regulation AB, Wilshire shall cause any such Subcontractor used by
Wilshire (or by any Subservicer) for the benefit of the Master Servicer and the
Depositor to comply with the provisions of Sections 16.05 and 16.07 of this
Agreement to the same extent as if such Subcontractor were Wilshire for those
criteria in Exhibit V for which the Subcontractor is responsible. Wilshire shall
be responsible for obtaining from each Subcontractor and delivering to the
Master Servicer and the Depositor any assessment of compliance and attestation
and the other certifications required to be delivered by such Subcontractor
under Section 16.05, in each case as and when required to be delivered.
Section 16.07 Indemnification; Remedies.
-184-
Wilshire shall indemnify the Master Servicer, each affiliate of the Master
Servicer, the Sponsor and the Issuing Entity; each Person (including, but not
limited to, the Master Servicer if applicable) responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to the securitization transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees, agents and affiliates of each of the foregoing
and of the Depositor (each, an "Indemnified Party"), and shall hold each of them
harmless from and against any claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any other
costs, fees and expenses that any of them may sustain arising out of or based
upon:
(i)(A) any untrue statement of a material fact contained or alleged to
be contained in any information, report, certification, data, accountants'
letter or other material provided under this Article 16 by or on behalf of
Wilshire, or provided under this Article 16 by or on behalf of any
Subservicer or Subcontractor (collectively, the "Company Information"), or
(B) the omission or alleged omission to state in Wilshire Information a
material fact required to be stated in Wilshire Information or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, by way of
clarification, that clause (B) of this paragraph shall be construed solely
by reference to Wilshire Information and not to any other information
communicated in connection with a sale or purchase of securities, without
regard to whether Wilshire Information or any portion thereof is presented
together with or separately from such other information;
(ii) any breach by Wilshire of its obligations under this Article 16,
including particularly any failure by Wilshire, any Subservicer or any
Subcontractor to deliver any information, report, certification,
accountants' letter or other material when and as required under this
Article 16, including any failure by Wilshire to identify pursuant to
Section 16.06(b) any Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB; or
(iii) the negligence bad faith or willful misconduct of Wilshire in
connection with its performance under this Article 16.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless an Indemnified Party, then Wilshire agrees that it shall
contribute to the amount paid or payable by such Indemnified Party as a result
of any claims, losses, damages or liabilities incurred by such Indemnified Party
in such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and Wilshire on the other.
This indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
-185-
IN WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer,
Wilshire and the Securities Administrator have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, N.A.,
as Master Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WILSHIRE CREDIT CORPORATION
as Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT A-1
FORM OF CLASS A AND CLASS M CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR
REFERRED TO BELOW OR ANY OF THEIR AFFILIATES. NONE OF THIS CERTIFICATE, THE
REMIC REGULAR INTEREST REPRESENTED HEREBY OR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED OR INSURED BY THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, THE
SECURITIES ADMINISTRATOR OR BY ANY OF THEIR AFFILIATES OR BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
UNTIL THE TERMINATION OF THE SWAP AGREEMENT, EACH TRANSFEREE OF THIS CERTIFICATE
SHALL BE DEEMED TO REPRESENT (OR IN THE CASE OF A DEFINITIVE CERTIFICATE, SHALL
REPRESENT) TO THE SECURITIES ADMINISTRATOR THAT (A) SUCH TRANSFEREE IS NOT, AND
IS NOT ACTING FOR, ON BEHALF OF OR WITH ANY ASSETS OF, ANY EMPLOYEE BENEFIT PLAN
OR OTHER ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR ANY PLAN SUBJECT TO SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) THE
TRANSFEREE'S ACQUISITION AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION
4975 OF THE CODE.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
A-1-1
IF ANY BOOK-ENTRY CERTIFICATE (OR ANY INTEREST THEREIN) IS ACQUIRED OR HELD IN
VIOLATION OF THE CERTIFICATE TRANSFER RESTRICTIONS IN THE AGREEMENT, THEN THE
LAST PRECEDING TRANSFEREE THAT IS IN COMPLIANCE WITH SUCH PROVISIONS SHALL BE
RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS
CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH TRANSFER OF SUCH
CERTIFICATE. NEITHER THE TRUSTEE NOR THE SECURITIES ADMINISTRATOR SHALL BE UNDER
ANY LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON SUCH CERTIFICATE TO
SUCH PRECEDING TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF ANY BOOK-ENTRY
CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE CERTIFICATE
TRANSFER RESTRICTIONS IN THE AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE
DEPOSITOR, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER AND
THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR
EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
A-1-2
MANA Series 2007-OAR3, Class [A-__] Aggregate Certificate Principal Balance
[M-__] of the Class [A-_][M-_] Certificates as
of the Issue Date: $[__________]
Pass-Through Rate: Variable(1) Initial Certificate Principal Balance
of this Class [A-_][M-_] Certificate as
of the Issue Date: $[__________]
Date of Agreement and Cut-off Date: Master Servicer and Securities
June 1, 2007 Administrator: Xxxxx Fargo Bank, N.A.
First Distribution Date: July 25, 2007 Trustee: HSBC Bank USA, National
Association
No. 07-OAR3-[A-__][M-__]-[__] Issue Date: [___________]
CUSIP: [___________]
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE PASS-THROUGH CERTIFICATE
MANA SERIES 2007-OAR3
evidencing a beneficial ownership interest in a Trust Fund (the "Trust
Fund") consisting primarily of a pool of conventional, adjustable-rate, hybrid
option, alt-A, negative amortization mortgage loans secured by first liens on
one- to four-family residential properties (the "Mortgage Loans") formed and
sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that CEDE & CO. is the registered owner of a Percentage
Interest obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal
----------
(1) As described in the Agreement referenced herein.
A-1-3
Balance of the Class [A- ][M- ] Certificates as of the Issue Date in that
certain beneficial ownership interest evidenced by all the Class [A- ][M- ]
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), Xxxxx Fargo Bank,
N.A., as master servicer (in such capacity, the "Master Servicer") and
securities administrator (in such capacity, the "Securities Administrator"),
HSBC Bank USA, National Association, as trustee (the "Trustee") and Wilshire
Credit Corporation, as a servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the period specified
in the Agreement on the Certificate Principal Balance hereof at a per annum rate
equal to the variable Pass-Through Rate described in the Agreement.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class [A- ][M- ] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
[A- ][M- ] Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Securities Administrator
of the pendency of such distribution and only upon the presentation and
surrender of this Certificate at the office or agency appointed by the
Securities Administrator for that purpose as provided in the Agreement.
If any Book-Entry Certificate (or any interest therein) is acquired or
held in violation of the certificate transfer restrictions in the Agreement,
then the last preceding Transferee that is in compliance with such provisions
shall be restored, to the extent permitted by law, to all rights and obligations
as Certificate Owner thereof retroactive to the date of such Transfer of such
Certificate. Neither the Trustee nor the Securities Administrator shall be under
any liability to any Person for making any payments due on such Certificate to
such preceding Transferee.
Any purported Certificate Owner whose acquisition or holding of any
Book-Entry Certificate (or interest therein) was effected in violation of the
certificate transfer restrictions in the Agreement shall indemnify and hold
harmless the Depositor, the Trustee, the Securities
A-1-4
Administrator, the Master Servicer and the Trust Fund from and against any and
all liabilities, claims, costs or expenses incurred by such parties as a result
of such acquisition or holding.
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series specified on the
face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Master Servicer Collection Account and the
Distribution Account may be made from time to time for purposes other than
distributions to Holders of the Certificates, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions provided
therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Securities Administrator, the Master Servicer
and the Trustee and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Securities Administrator, the Master
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and of
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Trust Fund or of the applicable Class or Classes, if such
amendment affects only such Class or Classes, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the
Certificateholders. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Securities Administrator as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Securities Administrator duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover
A-1-5
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Securities Administrator, the Master Servicer and
the Trustee and any agent of the Depositor, the Securities Administrator, the
Master Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Securities Administrator, the Master Servicer, the Trustee or any
such agent shall be affected by notice to the contrary.
This certificate shall be governed by and construed in accordance with
the laws of the state of New York.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment (or provision for payment) to the Holders
of the Certificates of all amounts held by the Securities Administrator and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the Distribution Date on which the Certificate Principal Balance of each
Class of Certificates has been reduced to zero, (ii) the final payment (or any
advance with respect thereto) on or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and (iii) the Optional Termination of the trust fund
according to the procedures described in the Agreement.
The recitals contained herein shall be taken as statements of the
Depositor and the Securities Administrator assumes no responsibility for their
correctness.
Unless the certificate of authentication hereon has been executed by
the Securities Administrator, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-1-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: [___________]
SECURITIES ADMINISTRATOR'S CERTIFICATE AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Pooling and
Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: [___________]
A-1-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right of ______________
survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
_______________________________________________________________________________.
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Securities Administrator to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated: _________
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-1-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number ___________, or, if mailed by check, to ________________________,
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS B CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR
REFERRED TO BELOW OR ANY OF THEIR AFFILIATES. NONE OF THIS CERTIFICATE, THE
REMIC REGULAR INTEREST REPRESENTED HEREBY OR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED OR INSURED BY THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, THE
SECURITIES ADMINISTRATOR OR BY ANY OF THEIR AFFILIATES OR BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR WITH (A) A
REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO ANY
STATE, LOCAL, FEDERAL, NON-U.S. OR OTHER LAW SUBSTANTIVELY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW"), AND IS NOT DIRECTLY
OR INDIRECTLY ACQUIRING THIS CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS
OF ANY SUCH PLAN, (B) IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION THAT SUCH TRANSFEREE IS AN
INSURANCE COMPANY THAT IS ACQUIRING THE CERTIFICATE WITH ASSETS OF AN "INSURANCE
COMPANY GENERAL ACCOUNT" AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 95-60 AND THE ACQUISITION AND HOLDING OF THE
CERTIFICATE ARE COVERED AND EXEMPT UNDER SECTIONS I AND III OF PTCE 95-60 OR (C)
SOLELY IN THE CASE OF A DEFINITIVE CERTIFICATE, AN OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR, AND UPON WHICH THE SECURITIES
ADMINISTRATOR SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR THE CODE OR A
VIOLATION OF SIMILAR LAW AND WILL NOT SUBJECT THE NIMS INSURER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, THE SERVICERS, THE MASTER SERVICER OR THE DEPOSITOR
TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN
A-2-1
EXPENSE OF THE NIMS INSURER, THE SECURITIES ADMINISTRATOR, THE TRUSTEE, THE
SERVICERS, THE MASTER SERVICER OR THE DEPOSITOR.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR.
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE RESIDUAL
CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
IF ANY BOOK-ENTRY CERTIFICATE (OR ANY INTEREST THEREIN) IS ACQUIRED OR HELD IN
VIOLATION OF THE CERTIFICATE TRANSFER RESTRICTIONS IN THE AGREEMENT, THEN THE
LAST PRECEDING TRANSFEREE THAT IS IN COMPLIANCE WITH SUCH PROVISIONS SHALL BE
RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS
CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH TRANSFER OF SUCH
CERTIFICATE. NEITHER THE TRUSTEE NOR THE SECURITIES ADMINISTRATOR SHALL BE UNDER
ANY LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON SUCH CERTIFICATE TO
SUCH PRECEDING TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF ANY BOOK-ENTRY
CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE CERTIFICATE
TRANSFER RESTRICTIONS IN THE AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE
DEPOSITOR, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER AND
THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR
EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
A-2-2
MANA Series 2007-OAR3, Class [B-__] Aggregate Certificate Principal Balance
of the Class [B-_] Certificates as of
the Issue Date: $[_________]
Pass-Through Rate: Variable(1) Initial Certificate Principal Balance
of this Class [B-_] Certificate as of
the Issue Date: $[_________]
Date of Agreement and Cut-off Date: Master Servicer and Securities
June 1, 2007 Administrator: Xxxxx Fargo Bank, N.A.
First Distribution Date: July 25, 2007 Trustee: HSBC Bank USA, National
Association
No. 07-OAR3-[B-__]-[__] Issue Date: [_________]
CUSIP: [_________]
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE PASS-THROUGH CERTIFICATE
MANA SERIES 2007-OAR3
evidencing a beneficial ownership interest in a Trust Fund (the "Trust
Fund") consisting primarily of a pool of conventional, adjustable-rate, hybrid
option, alt-A, negative amortization mortgage loans secured by first liens on
one- to four-family residential properties (the "Mortgage Loans") formed and
sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
----------
(1) As described in the Agreement referenced herein.
A-2-3
This certifies that CEDE & CO. is the registered owner of a Percentage
Interest obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal Balance of the Class [B- ] Certificates as of
the Issue Date in that certain beneficial ownership interest evidenced by all
the Class [B- ] Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement),
Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the "Master
Servicer") and securities administrator (in such capacity, the "Securities
Administrator"), HSBC Bank USA, National Association, as trustee (the "Trustee")
and Wilshire Credit Corporation, as a servicer. A summary of certain of the
pertinent provisions of the Agreement relating to the Trust Fund is set forth
hereafter. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the period specified
in the Agreement on the Certificate Principal Balance hereof at a per annum rate
equal to the variable Pass-Through Rate described in the Agreement.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class [B- ] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
[B- ] Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Securities Administrator
of the pendency of such distribution and only upon the presentation and
surrender of this Certificate at the office or agency appointed by the
Securities Administrator for that purpose as provided in the Agreement.
If any Book-Entry Certificate (or any interest therein) is acquired or
held in violation of the certificate transfer restrictions in the Agreement,
then the last preceding Transferee that is in compliance with such provisions
shall be restored, to the extent permitted by law, to all rights and obligations
as Certificate Owner thereof retroactive to the date of such Transfer of such
Certificate. Neither the Trustee nor the Securities Administrator shall be under
any liability to any Person for making any payments due on such Certificate to
such preceding Transferee.
A-2-4
Any purported Certificate Owner whose acquisition or holding of any
Book-Entry Certificate (or interest therein) was effected in violation of the
certificate transfer restrictions in the Agreement shall indemnify and hold
harmless the Depositor, the Trustee, the Securities Administrator, the Master
Servicer and the Trust Fund from and against any and all liabilities, claims,
costs or expenses incurred by such parties as a result of such acquisition or
holding.
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series specified on the
face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Master Servicer Collection Account and the
Distribution Account may be made from time to time for purposes other than
distributions to Holders of the Certificates, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions provided
therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Securities Administrator, the Master Servicer
and the Trustee and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Securities Administrator, the Master
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and of
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Trust Fund or of the applicable Class or Classes, if such
amendment affects only such Class or Classes, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the
Certificateholders. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Securities Administrator as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Securities Administrator duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are
A-2-5
exchangeable for new Certificates of the same Class in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Securities Administrator, the Master Servicer and
the Trustee and any agent of the Depositor, the Securities Administrator, the
Master Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Securities Administrator, the Master Servicer, the Trustee or any
such agent shall be affected by notice to the contrary.
This certificate shall be governed by and construed in accordance with
the laws of the state of New York.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment (or provision for payment) to the Holders
of the Certificates of all amounts held by the Securities Administrator and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the Distribution Date on which the Certificate Principal Balance of each
Class of Certificates has been reduced to zero, (ii) the final payment (or any
advance with respect thereto) on or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and (iii) the Optional Termination of the trust fund
according to the procedures described in the Agreement.
The recitals contained herein shall be taken as statements of the
Depositor and the Securities Administrator assumes no responsibility for their
correctness.
Unless the certificate of authentication hereon has been executed by
the Securities Administrator, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-2-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: [_________]
SECURITIES ADMINISTRATOR'S CERTIFICATE AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Pooling and
Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: [_________]
A-2-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right of ______________
survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
_______________________________________________________________________________.
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Securities Administrator to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
_______________________________________________________________________________
_______________________________________________________________________________.
Dated: __________
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-2-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number ___________, or, if mailed by check, to ________________________,
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS R CERTIFICATE
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN ONE OR MORE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS",
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR
REFERRED TO BELOW OR ANY OF THEIR AFFILIATES. NONE OF THIS CERTIFICATE, THE
REMIC RESIDUAL INTERESTS REPRESENTED HEREBY OR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED OR INSURED BY THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, THE
SECURITIES ADMINISTRATOR OR BY ANY OF THEIR AFFILIATES OR BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED, HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR WITH A
REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO ANY
FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE
SUBSTANTIVELY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, AND IS
NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS CERTIFICATE FOR, ON BEHALF OF, OR WITH
ANY ASSETS OF ANY SUCH PLAN. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE MAY BE MADE ONLY IN ACCORDANCE WITH THE
A-3-1
CERTIFICATE TRANSFER RESTRICTIONS IN THE AGREEMENT REFERRED TO HEREIN.
IF ANY BOOK-ENTRY CERTIFICATE (OR ANY INTEREST THEREIN) IS ACQUIRED OR HELD IN
VIOLATION OF THE CERTIFICATE TRANSFER RESTRICTIONS IN THE AGREEMENT, THEN THE
LAST PRECEDING TRANSFEREE THAT IS IN COMPLIANCE WITH SUCH PROVISIONS SHALL BE
RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS
CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH TRANSFER OF SUCH
CERTIFICATE. NEITHER THE TRUSTEE NOR THE SECURITIES ADMINISTRATOR SHALL BE UNDER
ANY LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON SUCH CERTIFICATE TO
SUCH PRECEDING TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF ANY BOOK-ENTRY
CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE CERTIFICATE
TRANSFER RESTRICTIONS IN THE AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE
DEPOSITOR, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER AND
THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR
EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
A-3-2
MANA Series 2007-OAR3, Class R Aggregate Certificate Principal Balance
of the Class R Certificates as of the
Issue Date: $[____________]
Pass-Through Rate: Variable(1) Initial Certificate Principal Balance
of this Class R Certificate as of the
Issue Date: $[____________]
Date of Agreement and Cut-off Date: Master Servicer and Securities
June 1, 2007 Administrator: Xxxxx Fargo Bank, N.A.
First Distribution Date: July 25, 2007 Trustee: HSBC Bank USA, National
Association
No. 07-OAR3-R-[__] Issue Date: [____________]
CUSIP: [____________]
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE PASS-THROUGH CERTIFICATE
MANA SERIES 2007-OAR3
evidencing a beneficial ownership interest in a Trust Fund (the "Trust
Fund") consisting primarily of a pool of conventional, adjustable-rate, hybrid
option, alt-A, negative amortization mortgage loans secured by first liens on
one- to four-family residential properties (the "Mortgage Loans") formed and
sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
----------
(1) As described in the Agreement referenced herein.
A-3-3
This certifies that XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
is the registered owner of a Percentage Interest obtained by dividing the
denomination of this Certificate by the aggregate Certificate Principal Balance
of the Class R Certificates as of the Issue Date in that certain beneficial
ownership interest evidenced by all the Class R Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor
(hereinafter called the "Depositor," which term includes any successor entity
under the Agreement), Xxxxx Fargo Bank, N.A., as master servicer (in such
capacity, the "Master Servicer") and securities administrator (in such capacity,
the "Securities Administrator"), HSBC Bank USA, National Association, as trustee
(the "Trustee") and Wilshire Credit Corporation, as a servicer. A summary of
certain of the pertinent provisions of the Agreement relating to the Trust Fund
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the period specified
in the Agreement on the Certificate Principal Balance hereof at a per annum rate
equal to the variable Pass-Through Rate described in the Agreement.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class R Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
R Certificates, or otherwise by check mailed by first class mail to the address
of the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Securities Administrator of the
pendency of such distribution and only upon the presentation and surrender of
this Certificate at the office or agency appointed by the Securities
Administrator for that purpose as provided in the Agreement.
If any Book-Entry Certificate (or any interest therein) is acquired or
held in violation of the certificate transfer restrictions in the Agreement,
then the last preceding Transferee that is in compliance with such provisions
shall be restored, to the extent permitted by law, to all rights and obligations
as Certificate Owner thereof retroactive to the date of such Transfer of such
Certificate. Neither the Trustee nor the Securities Administrator shall be under
any liability to any Person for making any payments due on such Certificate to
such preceding Transferee.
Any purported Certificate Owner whose acquisition or holding of any
Book-Entry Certificate (or interest therein) was effected in violation of the
certificate transfer restrictions in
A-3-4
the Agreement shall indemnify and hold harmless the Depositor, the Trustee, the
Securities Administrator, the Master Servicer and the Trust Fund from and
against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series specified on the
face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Master Servicer Collection Account and the
Distribution Account may be made from time to time for purposes other than
distributions to Holders of the Certificates, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions provided
therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Securities Administrator, the Master Servicer
and the Trustee and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Securities Administrator, the Master
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and of
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Trust Fund or of the applicable Class or Classes, if such
amendment affects only such Class or Classes, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the
Certificateholders. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Securities Administrator as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Securities Administrator duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Certificates, but the Securities Administrator may require
payment of a sum sufficient to
A-3-5
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Securities Administrator, the Master Servicer and
the Trustee and any agent of the Depositor, the Securities Administrator, the
Master Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Securities Administrator, the Master Servicer, the Trustee or any
such agent shall be affected by notice to the contrary.
This certificate shall be governed by and construed in accordance with
the laws of the state of New York.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment (or provision for payment) to the Holders
of the Certificates of all amounts held by the Securities Administrator and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the Distribution Date on which the Certificate Principal Balance of each
Class of Certificates has been reduced to zero, (ii) the final payment (or any
advance with respect thereto) on or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and (iii) the Optional Termination of the trust fund
according to the procedures described in the Agreement.
The recitals contained herein shall be taken as statements of the
Depositor and the Securities Administrator assumes no responsibility for their
correctness.
Unless the certificate of authentication hereon has been executed by
the Securities Administrator, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-3-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
-----------------------------------
AUTHORIZED SIGNATORY
Dated: [____________]
SECURITIES ADMINISTRATOR'S CERTIFICATE AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Pooling and
Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
-----------------------------------
AUTHORIZED SIGNATORY
Dated: [____________]
A-3-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right of ______________
survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
_______________________________________________________________________________.
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Securities Administrator to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated: __________
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-3-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number ___________, or, if mailed by check, to ________________________,
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS P CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR
REFERRED TO BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR INSURED BY THE DEPOSITOR, THE
TRUSTEE, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR BY ANY OF THEIR
AFFILIATES OR BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE SECURITIES ADMINISTRATOR WITH (A) A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER ARRANGEMENT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE") OR A PLAN SUBJECT TO ANY PROVISION UNDER ANY FEDERAL,
STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIVELY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW")
(COLLECTIVELY, A "PLAN"), AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS
CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS OF ANY SUCH PLAN, (B) IF THIS
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A
REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT IS ACQUIRING
THIS CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" AS
DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60
AND THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE COVERED AND EXEMPT UNDER
SECTIONS I AND III OF PTCE 95-60 OR (C) SOLELY IN THE CASE OF A DEFINITIVE
CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR,
AND UPON WHICH THE SECURITIES ADMINISTRATOR SHALL BE ENTITLED TO RELY, TO THE
EFFECT THAT THE ACQUISITION AND HOLDING OF THIS CERTIFICATE BY THE PROSPECTIVE
TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION
UNDER ERISA OR THE CODE, OR A VIOLATION OF SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER, ANY SERVICER 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 TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER, ANY
SERVICER OR THE DEPOSITOR. IF THE CERTIFICATE IS NOT A DEFINITIVE CERTIFICATE,
THE TRANSFEREE IS DEEMED TO HAVE MADE THE REPRESENTATION IN (A) OR (B) ABOVE.
A-4-1
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE CERTIFICATE TRANSFER RESTRICTIONS IN THE AGREEMENT.
A-4-2
MANA Series 2007-OAR3, Class P Percentage Interest: [________]%
Date of Agreement and Cut-off Date: Master Servicer and Securities
June 1, 2007 Administrator: Xxxxx Fargo Bank, N.A.
First Distribution Date: July 25, 2007 Trustee:
HSBC Bank USA, National Association
No. 07-OAR3-P-[__] Issue Date: [________]
CUSIP: [________]
MORTGAGE PASS-THROUGH CERTIFICATE
MANA SERIES 2007-OAR3
evidencing a beneficial ownership interest in a Trust Fund (the "Trust
Fund") consisting primarily of a pool of conventional, adjustable-rate, hybrid
option, alt-A, negative amortization mortgage loans secured by first liens on
one- to four-family residential properties (the "Mortgage Loans") formed and
sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(as nominee for Xxxxxxx Xxxxx Funding Corp.) is the registered owner of a 100%
Percentage Interest in that certain beneficial ownership interest evidenced by
all the Class P Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement),
Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the "Master
Servicer") and securities administrator (in such capacity, the "Securities
Administrator"), HSBC Bank USA, National Association, as trustee (the "Trustee")
and Wilshire Credit Corporation, as a servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
A-4-3
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class P Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
P Certificates, or otherwise by check mailed by first class mail to the address
of the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Securities Administrator of the
pendency of such distribution and only upon the presentation and surrender of
this Certificate at the office or agency appointed by the Securities
Administrator for that purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series specified on the
face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Master Servicer Collection Account and the
Distribution Account may be made from time to time for purposes other than
distributions to Holders of the Certificates, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions provided
therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Securities Administrator, the Master Servicer
and the Trustee and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Securities Administrator, the Master
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and of
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Trust Fund or of the applicable Class or Classes, if such
amendment affects only such Class or Classes, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the
Certificateholders. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Securities
A-4-4
Administrator as provided in the Agreement, duly endorsed by, or accompanied by
an assignment in the form below or other written instrument of transfer in form
satisfactory to the Securities Administrator duly executed by the Holder hereof
or such Holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations evidencing the
same aggregate Percentage Interest will be issued to the designated transferee
or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Certificateholder
surrendering the same.
No transfer of this Certificate shall be made unless the transfer is
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is exempt from the registration requirements under the 1933 Act and such state
securities laws. In the event that a transfer is to be made in reliance upon an
exemption from the 1933 Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Securities Administrator in writing the facts surrounding
the transfer in a Transferor Representation Letter as described in the Agreement
and (i) deliver to the Securities Administrator an Investor Representation
Letter or Rule 144A Letter as described in the Agreement or (ii) have delivered
to the Securities Administrator an Opinion of Counsel that such transfer may be
made pursuant to an exemption from the Securities Act, which Opinion of Counsel
shall not be an expense of the Depositor or the Securities Administrator. Any
Certificateholder desiring to effect a transfer of this Certificate shall
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No service charge will be made for any such registration of transfer
or exchange of Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Securities Administrator, the Master Servicer and
the Trustee and any agent of the Depositor, the Securities Administrator, the
Master Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Securities Administrator, the Master Servicer, the Trustee or any
such agent shall be affected by notice to the contrary.
This certificate shall be governed by and construed in accordance with
the laws of the state of New York.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment (or provision for payment) to the Holders
of the Certificates of all amounts held by the Securities Administrator and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the Distribution Date on which the Certificate Principal Balance of each
Class of Certificates has been reduced to zero, (ii) the final payment (or any
advance with respect thereto) on or other liquidation of the last Mortgage Loan
remaining in the
A-4-5
Trust Fund and (iii) the Optional Termination of the trust fund according to the
procedures described in the Agreement.
The recitals contained herein shall be taken as statements of the
Depositor and the Securities Administrator assumes no responsibility for their
correctness.
Unless the certificate of authentication hereon has been executed by
the Securities Administrator, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-4-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
-----------------------------------
AUTHORIZED SIGNATORY
Dated: [________]
SECURITIES ADMINISTRATOR'S CERTIFICATE AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Pooling and Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
-----------------------------------
AUTHORIZED SIGNATORY
Dated: [________]
A-4-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right of ______________
survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
_______________________________________________________________________________.
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through Certificate and
hereby authorize(s) the registration of transfer of such interest to assignee on
the Certificate Register of the Trust Fund.
I (we) further direct the Securities Administrator to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
_______________________________________________________________________________
_______________________________________________________________________________.
Dated: ___________
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-4-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number ___________, or, if mailed by check, to ________________________,
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS C CERTIFICATE
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN A GRANTOR TRUST THAT HOLDS ONE OR MORE "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED AND IS
TREATED AS HAVING ENTERED INTO CERTAIN NOTIONAL PRINCIPAL CONTRACTS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR
REFERRED TO BELOW OR ANY OF THEIR AFFILIATES. NONE OF THIS CERTIFICATE, THE
REMIC REGULAR INTERESTS REPRESENTED HEREBY OR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED OR INSURED BY THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, THE
SECURITIES ADMINISTRATOR OR BY ANY OF THEIR AFFILIATES OR BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
THIS CLASS C CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS SOLD OR TRANSFERRED IN TRANSACTIONS
WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT OR UNDER APPLICABLE STATE LAW
AND IS TRANSFERRED IN ACCORDANCE WITH THE CERTIFICATE TRANSFER RESTRICTIONS IN
THE AGREEMENT REFERRED TO HEREIN.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED, HAS AN INTEREST HEREIN.
A-5-1
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR WITH (A) A
REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO ANY
STATE, LOCAL, FEDERAL, NON-U.S. OR OTHER LAW SUBSTANTIVELY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW"), AND IS NOT DIRECTLY
OR INDIRECTLY ACQUIRING THIS CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS
OF ANY SUCH PLAN, (B) IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION THAT SUCH TRANSFEREE IS AN
INSURANCE COMPANY THAT IS ACQUIRING THE CERTIFICATE WITH ASSETS OF AN "INSURANCE
COMPANY GENERAL ACCOUNT" AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 95-60 AND THE ACQUISITION AND HOLDING OF THE
CERTIFICATE ARE COVERED AND EXEMPT UNDER SECTIONS I AND III OF PTCE 95-60 OR (C)
SOLELY IN THE CASE OF A DEFINITIVE CERTIFICATE, AN OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR, AND UPON WHICH THE SECURITIES
ADMINISTRATOR SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR THE CODE OR A
VIOLATION OF SIMILAR LAW AND WILL NOT SUBJECT THE NIMS INSURER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, THE SERVICERS, THE MASTER SERVICER OR THE DEPOSITOR
TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE NIMS INSURER,
THE SECURITIES ADMINISTRATOR, THE TRUSTEE, THE SERVICERS, THE MASTER SERVICER OR
THE DEPOSITOR.
IF ANY BOOK-ENTRY CERTIFICATE (OR ANY INTEREST THEREIN) IS ACQUIRED OR HELD IN
VIOLATION OF THE CERTIFICATE TRANSFER RESTRICTIONS IN THE AGREEMENT, THEN THE
LAST PRECEDING TRANSFEREE THAT IS IN COMPLIANCE WITH SUCH PROVISIONS SHALL BE
RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS
CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH TRANSFER OF SUCH
CERTIFICATE. NEITHER THE TRUSTEE NOR THE SECURITIES ADMINISTRATOR SHALL BE UNDER
ANY LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON SUCH CERTIFICATE TO
SUCH PRECEDING TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF ANY BOOK-ENTRY
CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE CERTIFICATE
TRANSFER RESTRICTIONS IN THE AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE
DEPOSITOR, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER AND
A-5-2
THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR
EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
A-5-3
MANA Series 2007-OAR3, Class C Percentage Interest: [_______]
Date of Agreement and Cut-off Date: Master Servicer and Securities Administrator:
June 1, 2007 Xxxxx Fargo Bank, N.A.
First Distribution Date: July 25, 2007 Trustee: HSBC Bank USA, National Association
No. 07-OAR3-C-[__] Issue Date: [_______]
Pass-Through Rate: Variable(4) CUSIP: [_______]
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE PASS-THROUGH CERTIFICATE
MANA SERIES 2007-OAR3
evidencing a beneficial ownership interest in a Trust Fund (the "Trust
Fund") consisting primarily of a pool of conventional, adjustable-rate, hybrid
option, alt-A, negative amortization mortgage loans secured by first liens on
one- to four-family residential properties (the "Mortgage Loans") formed and
sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
is the registered owner of a Percentage Interest obtained by dividing the
denomination of this Certificate by the aggregate Certificate Principal Balance
of the Class C Certificates as of the Issue Date in that certain beneficial
ownership interest evidenced by all the Class C Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc., as
----------
(4) As described in the Agreement referenced herein.
A-5-4
depositor (hereinafter called the "Depositor," which term includes any successor
entity under the Agreement), Xxxxx Fargo Bank, N.A., as master servicer (in such
capacity, the "Master Servicer") and securities administrator (in such capacity,
the "Securities Administrator"), HSBC Bank USA, National Association, as trustee
(the "Trustee") and Wilshire Credit Corporation, as a servicer. A summary of
certain of the pertinent provisions of the Agreement relating to the Trust Fund
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the period specified
in the Agreement on the Certificate Principal Balance hereof at a per annum rate
equal to the variable Pass-Through Rate described in the Agreement.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class C Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
C Certificates, or otherwise by check mailed by first class mail to the address
of the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Securities Administrator of the
pendency of such distribution and only upon the presentation and surrender of
this Certificate at the office or agency appointed by the Securities
Administrator for that purpose as provided in the Agreement.
If any Book-Entry Certificate (or any interest therein) is acquired or
held in violation of the certificate transfer restrictions in the Agreement,
then the last preceding Transferee that is in compliance with such provisions
shall be restored, to the extent permitted by law, to all rights and obligations
as Certificate Owner thereof retroactive to the date of such Transfer of such
Certificate. Neither the Trustee nor the Securities Administrator shall be under
any liability to any Person for making any payments due on such Certificate to
such preceding Transferee.
Any purported Certificate Owner whose acquisition or holding of any
Book-Entry Certificate (or interest therein) was effected in violation of the
certificate transfer restrictions in the Agreement shall indemnify and hold
harmless the Depositor, the Trustee, the Securities Administrator, the Master
Servicer and the Trust Fund from and against any and all liabilities, claims,
costs or expenses incurred by such parties as a result of such acquisition or
holding.
A-5-5
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series specified on the
face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Master Servicer Collection Account and the
Distribution Account may be made from time to time for purposes other than
distributions to Holders of the Certificates, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions provided
therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Securities Administrator, the Master Servicer
and the Trustee and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Securities Administrator, the Master
Servicer and the Trustee, with the consent of the NIMs Insurer, if any, and of
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Trust Fund or of the applicable Class or Classes, if such
amendment affects only such Class or Classes, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the
Certificateholders. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Securities Administrator as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Securities Administrator duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
A-5-6
The Depositor, the Securities Administrator, the Master Servicer and
the Trustee and any agent of the Depositor, the Securities Administrator, the
Master Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Securities Administrator, the Master Servicer, the Trustee or any
such agent shall be affected by notice to the contrary.
This certificate shall be governed by and construed in accordance with
the laws of the state of New York.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment (or provision for payment) to the Holders
of the Certificates of all amounts held by the Securities Administrator and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the Distribution Date on which the Certificate Principal Balance of each
Class of Certificates has been reduced to zero, (ii) the final payment (or any
advance with respect thereto) on or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and (iii) the Optional Termination of the trust fund
according to the procedures described in the Agreement.
The recitals contained herein shall be taken as statements of the
Depositor and the Securities Administrator assumes no responsibility for their
correctness.
Unless the certificate of authentication hereon has been executed by
the Securities Administrator, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-5-7
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: [_______]
SECURITIES ADMINISTRATOR'S CERTIFICATE AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Pooling and
Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: [_______]
A-5-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
TEN ENT - as tenants by the entireties (Cust)(Minor)
under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right of ______________
survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
_______________________________________________________________________________.
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Securities Administrator to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated: ______________
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-5-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds
to ________________________________________________________________,
for the account of _________________________________________________,
account number___________, or, if mailed by check, to ______________,
Applicable statements should be mailed to __________________________,
____________________________________________________________________.
This information is provided by ____________________________________,
the assignee named above, or _______________________________________,
as its agent.
X-0-00
XXXXXXX X-0
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
X-0-0
XXXXXXX X
[XXXXXXXX]
X-0
XXXXXXX X
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx Xxxxxxxxx 00000
Attn: ______________________
Re: Custodial Agreement, dated as of June 29, 2007 among HSBC Bank USA,
National Association, Xxxxxxx Xxxxx Mortgage Investors, Inc. and Xxxxx
Fargo Bank, N.A.
In connection with the administration of the Mortgage Loans held by you as
Custodian for the Owner pursuant to the above-captioned Custodial Agreement, we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number: ________________________________________________
Mortgagor Name, Address & Zip Code: __________________________________
Reason for Requesting Documents (check one): _________________________
__________ 1. Mortgage Paid in full
__________ 2. Foreclosure
__________ 3. Substitution
__________ 4. Other Liquidation (Repurchases, etc.)
__________ 5. Nonliquidation Reason:
--------------------------------
By:
------------------------------------
(authorized signer)
Issuer:
--------------------------------
Address:
-------------------------------
Date:
----------------------------------
D-1
Custodian
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your
signature and date below:
Please acknowledge the execution of the above request by your
signature and date below:
------------------------------------- -------------------------
Signature Date
Documents returned to Custodian:
------------------------------------- -------------------------
Custodian Date
D-2
EXHIBIT E-1
FORM OF TRANSFEREE'S LETTER
[DATE]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - Xxxxxxx Xxxxx Alternative Note Asset
Trust, Series 2007-OAR3
Ladies and Gentlemen:
We propose to purchase Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-OAR3 Mortgage Pass-Through Certificates, Class R, described in the
Prospectus Supplement, dated June [28], 2007, and the Prospectus, dated May 15,
2007. Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement, dated June 1, 2007
relating to this issuance of the Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-OAR3 Mortgage Pass-Through Certificates (the "Pooling and Servicing
Agreement").
1. We certify that (a) we are not a disqualified organization and (b)
we are not purchasing such Class R Certificate on behalf of a disqualified
organization; for this purpose the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code. We
understand that any breach by us of this certification may cause us to be liable
for an excise tax imposed upon transfers to disqualified organizations.
2. We certify that (a) we have historically paid our debts as they
became due, (b) we intend, and believe that we will be able, to continue to pay
our debts as they become due in the future, (c) we understand that, as
beneficial owner of the Class R Certificate, we may incur tax liabilities in
excess of any cash flows generated by the Class R Certificate, and (d) we intend
to pay any taxes associated with holding the Class R Certificate as they become
due and (e) we will not cause income from the Class R Certificate to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of ours or another U.S. taxpayer.
E-1-1
3. We acknowledge that we will be the beneficial owner of the Class R
Certificate and:(1)
____ The Class R Certificate will be registered in our name.
____ The Class R Certificate will be held in the name of our nominee,
_________________, which is not a disqualified organization.
4. We certify that we are not an employee benefit plan subject to
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a plan subject to Section 4975 of the Code or a plan subject to
federal, state, local, non-U.S. or other law substantively similar to the
foregoing provisions of ERISA or the Code (each, a "Plan"), and are not directly
or indirectly acquiring the Class R Certificate on behalf of or with any assets
of a Plan.
5. We certify that (i) we are a U.S. person or (ii) we will hold the
Class R Certificate in connection with the conduct of a trade or business within
the United States and have furnished the transferor and the Securities
Administrator with a duly completed and effective Internal Revenue Service Form
W-8ECI or successor form at the time and in the manner required by the Code; for
this purpose the term "U.S. person" means a citizen or resident of the United
States, a corporation, or partnership (unless, in the case of a partnership,
Treasury regulations are adopted that provide otherwise) created or organized in
or under the laws of the United States, any State thereof or the District of
Columbia, including an entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of the source of its income, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more such U.S. persons have the authority
to control all substantial decisions of the trust (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as U.S. Persons. We agree that any
breach by us of this certification shall render the transfer of any interest in
the Class R Certificate to us absolutely null and void and shall cause no rights
in the Class R Certificate to vest in us.
6. We agree that in the event that at some future time we wish to
transfer any interest in the Class R Certificate, we will transfer such interest
in the Class R Certificate only (a) to a transferee that (i) is not a
disqualified organization and is not purchasing such interest in the Class R
Certificate on behalf of a disqualified organization, (ii) is a U.S. person or
will hold the Class R Certificate in connection with the conduct of a trade or
business within the United States and will furnish us and the Securities
Administrator with a duly completed and effective Internal Revenue Service Form
W-8ECI or successor form at the time and in the manner required by the Code and
(iii) has delivered to the Securities Administrator a letter in the form of this
letter (including the affidavit appended hereto) and, we will provide the
Securities Administrator a written statement substantially in the form of
Exhibit E-2 to the Pooling and Servicing Agreement.
----------
(1) Check appropriate box and if necessary fill in the name of the Transferee's
nominee.
E-1-2
7. We hereby designate _______________________ as our fiduciary to act
as the tax matters person for each of the REMICs provided for in the Pooling and
Servicing Agreement in which the Class R Certificate represents the residual
interest.
Very truly yours,
[Purchaser]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of __________ __, 200__
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
E-1-3
APPENDIX A
Affidavit pursuant to (i) Section 860E(e)(4) of the Internal
Revenue Code of 1986, as amended, and (ii) certain provisions of the
Pooling and Servicing Agreement
Under penalties of perjury, the undersigned declares that the following is true:
1. He or she is an officer of _________________________ (the
"Investor"),
2. the Investor's Employer Identification number is __________,
3. the Investor is not a "disqualified organization" (as defined
below), has no plan or intention of becoming a disqualified
organization, and is not acquiring any of its interest in the
Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3
Mortgage Pass-Through Certificates, Class R Certificate on behalf
of a disqualified organization or any other entity,
4. unless Xxxxxxx Xxxxx Mortgage Investors, Inc. ("MLMI") has
consented to the transfer to the Investor, the Investor is a
"U.S. person" (as defined below),
5. that no purpose of the transfer is to avoid or impede the
assessment or collection of tax,
6. the Investor has historically paid its debts as they became due,
7. the Investor intends, and believes that it will be able, to
continue to pay its debts as they become due in the future,
8. the Investor understands that, as beneficial owner of the Class R
Certificate, it may incur tax liabilities in excess of any cash
flows generated by the Class R Certificate,
9. the Investor intends to pay any taxes associated with holding the
Class R Certificate as they become due,
10. the Investor consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by MLMI (upon
advice of counsel) to constitute a reasonable arrangement to
ensure that the Class R Certificate will not be owned directly or
indirectly by a disqualified organization, and
11. IF BRACKETED, THE FOLLOWING CERTIFICATIONS ARE INAPPLICABLE [the
transfer is not a direct or indirect transfer of the Class R
Certificate to a foreign permanent establishment or fixed base
(within the meaning of an applicable income tax treaty) of the
Investor, and as to each of the residual interests represented by
the Class R Certificate, the present value of the anticipated tax
liabilities associated with holding such residual interest does
not exceed the sum of:
E-1-4
A. the present value of any consideration given to the
Investor to acquire such residual interest;
B. the present value of the expected future distributions
on such residual interest; and
C. the present value of the anticipated tax savings
associated with holding such residual interest as the
related REMIC generates losses.
For purposes of this declaration, (i) the Investor is assumed to
pay tax at a rate equal to the highest rate of tax specified in
Section 11(b)(1) of the Code, but the tax rate specified in
Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b)(1) of the Code if the
Investor has been subject to the alternative minimum tax under
Section 55 of the Code in the preceding two years and will
compute its taxable income in the current taxable year using the
alternative minimum tax rate, and (ii) present values are
computed using a discount rate equal to the Federal short-term
rate prescribed by Section 1274(d) of the Code for the month of
the transfer and the compounding period used by the Investor;]
[(11) (A) at the time of the transfer, and at the close of each of the
Investor's two fiscal years preceding the Investor's fiscal year
of transfer, the Investor's gross assets for financial reporting
purposes exceed $100 million and its net assets for financial
reporting purposes exceed $10 million; and
(B) the Investor is an eligible corporation as defined in Treasury
regulations Section 1.860E-1(c)(6)(i) and has agreed in writing
that any subsequent transfer of the Class R Certificate will be
to another eligible corporation in a transaction that satisfies
Treasury regulation Sections 1.860E-1(c)(4)(i),
1.860E-1(c)(4)(ii), 1.860E-1(c)(4)(iii) and 1.860E-1(c)(5) and
such transfer will not be a direct or indirect transfer to a
foreign permanent establishment (within the meaning of an
applicable income tax treaty) of a domestic corporation.
For purposes of this declaration, the gross and net assets of the Investor do
not include any obligation of any related person as defined in Treasury
regulation Section 1.860E-1(c)(6)(ii) or any other asset if a principal purpose
for holding or acquiring the other asset is to permit the Investor to make this
declaration or to satisfy the requirements of Treasury regulation Section
1.860E-1(c)(5)(i).]
(12) The Investor will not cause income from the Class R Certificate to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Investor or another U.S.
taxpayer.
E-1-5
For purpose of this affidavit, the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code and the term
"U.S. Person" means a citizen or resident of the United States, a corporation or
partnership (unless, in the case of a partnership, Treasury regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to Unites States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust, and one or
more such U.S. Persons have the authority to control all substantial decisions
of such trust, (or, to the extent provided in applicable Treasury regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
E-1-6
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its behalf, pursuant to authority of its Board of Directors, by its
_____________ this ___ day of ______________, 20__.
[INVESTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Personally appeared before me the above-named _______________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ____________________________of the Investor, and acknowledged to me that
he executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this ___ day of ______________, 20__.
NOTARY PUBLIC
-------------------------------------
COUNTY OF_____________________
STATE OF______________________
My commission expires the _____ day of __________ 20__.
E-1-7
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE
[DATE]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Services - Xxxxxxx Xxxxx Alternative Note Asset
Trust, Series 2007-OAR3
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true, and has no reason to believe that the
Transferee has the intention to impede the assessment or collection of any
federal, state or local taxes legally required to be paid with respect to the
Class R Certificate referred to in the attached affidavit. In addition, the
Transferor has conducted a reasonable investigation at the time of the transfer
and found that the Transferee had historically paid its debts as they came due
and found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due.
Very truly yours,
[Transferor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-2-1
EXHIBIT F-1
FORM OF TRANSFEROR REPRESENTATION LETTER
______________, 200___
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3 Mortgage
Pass-Through Certificates, Class [_]
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________ (the
"Purchaser") of $_________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Class _____ (the "Certificates"), issued pursuant to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of June 1, 2007 among Xxxxxxx Xxxxx Mortgage Investors, Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A. as master servicer (in such
capacity, the "Master Servicer") and securities administrator (in such capacity,
the "Securities Administrator"), Wilshire Credit Corporation, as servicer, and
HSBC Bank USA, National Association, as trustee (the "Trustee"). The Seller
hereby certifies, represents and warrants to, and covenants with, the Depositor
and the Securities Administrator that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act in any
manner set forth in the foregoing sentence with respect to any Certificate. The
F-1-1
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing Agreement.
Very truly yours,
----------------------------------------
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-1-2
EXHIBIT F-2
FORM OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
__________, 200__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3 Mortgage
Pass-Through Certificates, Class [ ]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
institutional "accredited investor," as defined in Regulation D under the Act,
and have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) solely in the case of an ERISA
Restricted Certificate, we (i) are not an employee benefit plan or arrangement
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), a plan subject to Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code") or a plan subject to any provisions under any
federal, state, local, non-U.S. or other laws or regulations that are
substantively similar to foregoing provisions of ERISA or the Code ("Similar
Law") (collectively, a "Plan"), and are not directly or indirectly acquiring
this Certificate for, on behalf of or with any assets of any such Plan, (ii) if
the Certificate has been the subject of an ERISA-Qualifying Underwriting, are an
insurance company that is acquiring the Certificate with assets of an "insurance
company general account" as defined in Section V(E) of Prohibited Transaction
Class Exemption ("PTCE") 95-60, and the acquisition and holding of the
Certificate are covered and exempt under Sections I and III of PTCE 95-60, or
(iii) solely in the case of a Definitive Certificate, shall deliver herewith an
Opinion of Counsel satisfactory to the Securities Administrator, and upon which
the Securities Administrator shall be entitled to rely, to the effect that the
acquisition and holding of this certificate by the transferee will not result in
a nonexempt prohibited transaction under ERISA or the Code, or a violation of
Similar Law, and will not subject the Depositor, the Master Servicer, the
Securities Administrator or the Trustee to any obligation in addition to those
undertaken by such entities in the Pooling and Servicing Agreement, which
Opinion of Counsel
F-2-1
shall not be an expense of the Depositor, the Master Servicer, the Securities
Administrator or the Trustee, (e) we are acquiring the Certificates for
investment for our own account and not with a view to any distribution of such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below), (f)
we have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, or taken any other action which would result in a
violation of Section 5 of the Act, and (g) we will not sell, transfer or
otherwise dispose of any Certificates unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act or is exempt from such registration requirements, and if requested, we will
at our expense provide an opinion of counsel satisfactory to the addressees of
this Certificate that such sale, transfer or other disposition may be made
pursuant to an exemption from the Act, (2) The purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially the
same effect as this certificate, and (3) The purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling and
Servicing Agreement.
Very truly yours,
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Authorized Officer
F-2-2
EXHIBIT F-3
FORM OF RULE 144A LETTER
____________, 200__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3 Mortgage
Pass-Through Certificates, Class [ ]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) solely in the case of an ERISA Restricted
Certificate, we (i) are not an employee benefit plan or arrangement subject to
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a plan subject to Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") or a plan subject to any provisions under any federal,
state, local, non-U.S. or other laws or regulations that are substantively
similar to foregoing provisions of ERISA or the Code ("Similar Law")
(collectively, a "Plan"), and are not directly or indirectly acquiring this
Certificate for, on behalf of or with any assets of any such Plan, (ii) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, are an
insurance company that is acquiring the Certificate with assets of an "insurance
company general account" as defined in Section V(E) of Prohibited Transaction
Class Exemption ("PTCE") 95-60, and the acquisition and holding of the
Certificate are covered and exempt under Sections I and III of PTCE 95-60, or
(iii) solely in the case of a Definitive Certificate, shall deliver herewith an
Opinion of Counsel satisfactory to the Securities Administrator, and upon which
the Securities Administrator shall be entitled to rely, to the effect that the
acquisition and holding of this certificate by the transferee will not result in
a nonexempt prohibited transaction under ERISA or the Code, or a violation of
Similar Law, and will not subject the Depositor, the Master Servicer, the
Securities Administrator or the Trustee to any obligation in addition to those
undertaken by such entities in the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be an expense of the Depositor, the Master
Servicer, the Securities Administrator or the
F-3-1
Trustee, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Act or that would render the
disposition of the Certificates a violation of Section 5 of the Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
(f) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Act ("Rule 144A") and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2, (g) we are
aware that the sale to us is being made in reliance on Rule 144A, and (h) we are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (A) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (B) pursuant to another
exemption from registration under the Act.
Very truly yours,
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Authorized Officer
F-3-2
ANNEX I TO EXHIBIT F-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, The Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) The Buyer owned and/or
invested on a discretionary basis $___________(1) in securities (except for the
1 excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) The Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, The business
of which is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
----------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
F-3-3
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor registered under
the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, The Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
The securities may be valued at market. Further, in determining such aggregate
amount, The Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
F-3-4
6. Until the date of purchase of the Rule 144A Securities, The Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, The Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, The Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
----------------------------------------
Print Name of Buyer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
F-3-5
ANNEX II TO EXHIBIT F-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, The Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) The Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, The Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, The cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, The securities may be valued at market.
___ The Buyer owned $ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $ in securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
F-3-6
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, The Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, The undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, The Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
----------------------------------------
Print Name of Buyer or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Buyer
Date:
----------------------------------
F-3-7
EXHIBIT F-4
MIDDLEMAN REPRESENTATION LETTER
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3 Mortgage
Pass-Through Certificates, Class [ ]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that we are not acquiring the Class C or Class P Certificates as a "middleman"
as that term is defined in Treasury Regulation Section 1.671-5(b)(10).
Very truly yours,
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Authorized Officer
F-4-1
EXHIBIT G
FORM OF CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to
time, the "Agreement"), dated as of June 28, 2007, by and among HSBC BANK USA,
NATIONAL ASSOCIATION, as trustee (including its successors under the Pooling and
Servicing Agreement defined below, the "Trustee"), XXXXXXX XXXXX MORTGAGE
INVESTORS, INC., as company (together with any successor in interest, the
"Company"), XXXXX FARGO BANK, N.A., as securities administrator and master
servicer (together with any successor in interest or successor under the Pooling
and Servicing Agreement referred to below, the "Master Servicer") and XXXXX
FARGO BANK, N.A., as custodian (together with any successor in interest or any
successor appointed hereunder, the "Custodian").
WITNESSETH THAT:
WHEREAS, the Company, the Master Servicer, Wilshire Credit
Corporation, as a servicer, and the Trustee have entered into a Pooling and
Servicing Agreement, dated as of June 1, 2007, relating to the issuance of
Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3 Mortgage
Pass-Through Certificates, (as amended and supplemented from time to time, the
"Pooling and Servicing Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for
the purposes of receiving and holding certain documents and other instruments
delivered by the Company, the Master Servicer or the Servicer under the Pooling
and Servicing Agreement, all upon the terms and conditions and subject to the
limitations hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Company, the
Master Servicer and the Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement and not defined herein shall
have the meanings assigned in the Pooling and Servicing Agreement, unless
otherwise required by the context herein.
ARTICLE II
CUSTODY OF MORTGAGE DOCUMENTS
2.01 Custodian to Act as Agent: Acceptance of Mortgage Files,
Attestations and Assessments of Compliance.
(a) The Custodian, as the duly appointed agent of the Trustee for
these purposes, acknowledges (subject to any exceptions noted in the Initial
Certification referred to in
G-1
Section 2.3(a)) receipt of the Mortgage Files relating to the Mortgage Loans
identified on the schedule attached hereto (the "Mortgage Files") and declares
that it holds and will hold such Mortgage Files as agent for the Trustee, in
trust, for the use and benefit of all present and future Certificateholders.
(b) On or before March 1st of each calendar year, beginning with March
1, 2008, the Custodian shall, at its own expense, cause a firm of independent
public accountants (who may also render other services to Custodian), that is a
member of the American Institute of Certified Public Accountants, to furnish to
the Company and the Master Servicer a report to the effect that such firm
attests to, and reports on, the assessment made by such asserting party pursuant
to Section 2.01(c) below, which report shall be made in accordance with
standards for attestation engagements issued or adopted by the Public Company
Accounting Oversight Board.
(c) On or before March 1st of each calendar year, beginning with March
1, 2008, the Custodian shall deliver to the Company and the Master Servicer a
report regarding its assessment of compliance with the servicing criteria
identified in Exhibit Three attached hereto, as of and for the period ending the
end of the fiscal year ending no later than December 31 of the year prior to the
year of delivery of the report, with respect to asset-backed security
transactions taken as a whole in which the Custodian is performing any of the
servicing criteria specified in Exhibit Three and that are backed by the same
asset type backing such asset-backed securities. Each such report shall include
(a) a statement of the party's responsibility for assessing compliance with the
servicing criteria applicable to such party, (b) a statement that such party
used the criteria identified in Item 1122(d) of Regulation AB (Section
229.1122(d)) to assess the compliance with the applicable servicing criteria,
(c) disclosure of any material instance of noncompliance identified by such
party, and (d) a statement that a registered public accounting firm has issued
an attestation report on such party's assessment of compliance with the
applicable servicing criteria, which report shall be delivered by the Custodian
as provided in this Section 2.01(c). However, the Custodian's obligation to
provide a report on assessment of compliance or an attestation with respect to
itself and with respect to any Subcontractor shall be suspended in any year in
which the Issuing Entity's reporting obligations under the Exchange Act are
suspended.
(d) The Custodian has not and shall not engage any Subcontractor which
is "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, unless such Subcontractor agrees to provide in any year in which
a Form 10-K will be filed by the Trust, no later than March 1st of such year, an
assessment and a statement of registered public accounting firm certifying its
compliance with the applicable servicing criteria in Item 1122(d) of Regulation
AB as of and for the period ending the end of the fiscal year ending no later
than December 31 of the year prior to the year of delivery of the report.
"Subcontractor" as used herein means any vendor, subcontractor or other Person
that is not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of the
Mortgage Loans but performs one or more discrete functions identified in Item
1122(d) of Regulation AB with respect to the Mortgage Loans under the direction
or authority of the Custodian.
(e) The Custodian agrees to indemnify the Company, the Master
Servicer, the Trust Fund and each of their respective directors, officers,
employees and agents and hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees
G-2
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon the
engagement of any Subcontractor in violation of Section 2.01(d) or any failure
by the Custodian to deliver any information, report, certification, accountants'
letter or other material when and as required under this Agreement, including
any report under Sections 2.01(b) or 2.01(c).
2.02 Reserved.
2.03 Review of Mortgage Files.
(a) On or prior to the Closing Date, the Custodian agrees, for the
benefit of Certificateholders, to review, in accordance with the provisions of
Section 2.02 of the Pooling and Servicing Agreement, each such document, and
shall deliver to the Depositor, the Trustee and any NIMs Insurer an Initial
Certification in the form annexed hereto as Exhibit One evidencing receipt
(subject to any exceptions noted therein) of a Mortgage File for each of the
Mortgage Loans listed on the Schedule attached hereto (the "Mortgage Loan
Schedule") and certifying that all such documents have been executed and
received and that such documents relate to the Mortgage Loans identified on the
Mortgage Loan Schedule, except for any exceptions listed on Schedule A attached
to such Initial Certification. The Custodian shall be under no duty or
obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine,
enforceable, or appropriate for the represented purpose or that they have
actually been recorded or that they are other than what they purport to be on
their face.
(b) Not later than 180 days after the Closing Date, the Custodian
shall review the Mortgage Files as provided in Section 2.02 of the Pooling and
Servicing Agreement and deliver to the Trustee a Final Certification in the form
annexed hereto as Exhibit Two evidencing the completeness of the Mortgage Files
(subject to any exceptions noted therein).
(c) In reviewing the Mortgage Files as provided herein and in the
Pooling and Servicing Agreement, the Custodian shall make no representation as
to and shall not be responsible to verify (i) the validity, legality,
enforceability, due authorization, recordability, sufficiency or genuineness of
any of the documents included in any Mortgage File or (ii) the collectibility,
insurability, effectiveness or suitability of any of the documents in any
Mortgage File.
Upon receipt of written request from the Trustee, the Custodian shall
as soon as practicable supply the Trustee with a list of all of the documents
relating to the Mortgage Loans then contained in the Mortgage Files.
2.04 Notification of Breaches of Representations and Warranties. Upon
discovery by the Custodian of a breach of any representation or warranty made by
the Company as set forth in the Pooling and Servicing Agreement with respect to
a Mortgage Loan relating to a Mortgage File, the Custodian shall give prompt
written notice to the Company, the related Servicer and the Trustee.
2.05 Custodian to Cooperate: Release of Mortgage Files. Upon receipt
of written notice from the Master Servicer that the Mortgage Loan Seller has
repurchased a Mortgage Loan pursuant to Article II of the Pooling and Servicing
Agreement, and that the
G-3
purchase price therefor has been deposited in the Master Servicer Collection
Account or the Distribution Account, then the Custodian agrees to promptly
release to the Mortgage Loan Seller the related Mortgage File.
Upon the Custodian's receipt of a request for release (a "Request for
Release") substantially in the form of Exhibit D to the Pooling and Servicing
Agreement signed by a Servicing Officer of the related Servicer stating that it
has received payment in full of a Mortgage Loan or that payment in full will be
escrowed in a manner customary for such purposes, the Custodian agrees promptly
(but no later than three (3) Business Days) to release to such Servicer the
related Mortgage File. The Company shall deliver to the Custodian and the
Custodian agrees to accept the Mortgage Note and other documents constituting
the Mortgage File with respect to any Substitute Mortgage Loan. Any such Request
for Release provided by the related Servicer under this paragraph, must specify
the Mortgage File so requested for release in sufficient detail, and with
sufficient accuracy, to allow the Custodian timely to perform its obligations
under this Agreement in connection with such Request for Release. The Custodian
shall have no liability for any costs incurred by the related Servicer resulting
from any failure of the Custodian, in connection with any Request for Release,
to deliver any Mortgage File in a manner consistent with the terms of this
Agreement to the extent such failure is the result of insufficient detail or
insufficient accuracy provided to the Custodian in such Request for Release.
From time to time as is appropriate for the servicing or foreclosure
of any Mortgage Loan, including, for this purpose, collection under any Primary
Mortgage Insurance Policy, the related Servicer shall deliver to the Custodian a
Request for Release signed by a Servicing Officer requesting that possession of
all of the Mortgage File be released to such Servicer and certifying as to the
reason for such release and that such release will not invalidate any insurance
coverage provided in respect of the Mortgage Loan under any of the Insurance
Policies. Upon receipt of the foregoing, the Custodian promptly shall deliver
the Mortgage File to such Servicer. The related Servicer shall cause each
Mortgage File or any document therein so released to be returned to the
Custodian when the need therefore by such Servicer no longer exists, unless (i)
the Mortgage Loan has been liquidated and the Liquidation Proceeds relating to
the Mortgage Loan have been deposited in the Master Servicer Collection Account
or the Distribution Account or (ii) the Mortgage File or such document has been
delivered to an attorney, or to a public trustee or other public official as
required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the related Servicer has delivered to the Custodian a
certificate of a Servicing Officer certifying as to the name and address of the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery.
At any time that a Servicer is required to deliver to the Custodian a
Request for Release, such Servicer shall deliver two copies of the Request for
Release if delivered in hard copy or such Servicer may furnish such Request for
Release electronically to the Custodian, in which event the Servicing Officer
transmitting the same shall be deemed to have signed the Request for Release. In
connection with any Request for Release of a Mortgage File because of a
repurchase of a Mortgage Loan, the related Servicer shall send to the Trustee an
assignment of mortgage, without recourse, representation or warranty from the
Trustee to the Mortgage Loan Seller and the related Mortgage Note which shall be
endorsed without recourse, representation or warranty by the Trustee and the
Trustee shall forward such documents to the Mortgage Loan
G-4
Seller. In connection with any Request for Release of a Mortgage File because of
the payment in full of a Mortgage Loan, the related Servicer shall send to the
Trustee a certificate of satisfaction or other similar instrument to be executed
by or on behalf of the Trustee and returned to such Servicer.
Section 2.6 Assumption Agreements. In the event that any assumption
agreement or substitution of liability agreement is entered into with respect to
any Mortgage Loan subject to this Agreement, in accordance with the terms and
provisions of the Pooling and Servicing Agreement, the Master Servicer shall
cause the related Servicer to notify the Custodian that such assumption or
substitution agreement has been completed by forwarding to the Custodian the
original of such assumption or substitution agreement, which shall be added to
the related Mortgage File and, for all purposes, shall be considered a part of
such Mortgage File to the same extent as all other documents and instruments
constituting parts thereof.
ARTICLE III
CONCERNING THE CUSTODIAN
2.01 Custodian a Bailee and Agent of the Trustee. With respect to each
Mortgage Note, Mortgage and other documents constituting each Mortgage File
which are delivered to the Custodian, the Custodian is exclusively the bailee
and agent of the Trustee and has no instructions to hold any Mortgage Note or
Mortgage for the benefit of any person other than the Trustee and the
Certificateholders and undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement. Except upon compliance with the
provisions of Section 2.5 of this Agreement, no Mortgage Note, Mortgage or
Mortgage File shall be delivered by the Custodian to the Company, the related
Servicer or the Master Servicer or otherwise released from the possession of the
Custodian.
2.02 Reserved.
2.03 Custodian May Own Certificates. The Custodian in its individual
or any other capacity may become the owner or pledgee of Certificates with the
same rights it would have if it were not Custodian.
2.04 Master Servicer to Pay Custodian's Fees and Expenses. The Master
Servicer covenants and agrees to pay to the Custodian from time to time, and the
Custodian shall be entitled to, reasonable compensation for all services
rendered by it in the exercise and performance of any of the powers and duties
hereunder of the Custodian, and the Master Servicer will pay or reimburse the
Custodian upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Custodian in accordance with any of the
provisions of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith or to the extent that such cost or expense is
indemnified by the Company pursuant to the Pooling and Servicing Agreement.
2.05 Custodian May Resign; Trustee May Remove Custodian. The Custodian
may resign from the obligations and duties hereby imposed upon it as such
obligations and duties relate to its acting as Custodian of the Mortgage Loans.
Upon receiving such notice of resignation, the Trustee shall either take custody
of the Mortgage Files itself and give prompt notice thereof to the Company, the
Master Servicer and the Custodian, or promptly appoint a
G-5
successor Custodian by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Custodian and one copy to the
successor Custodian. If the Trustee shall not have taken custody of the Mortgage
Files and no successor Custodian shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Custodian may petition any court of competent jurisdiction for the
appointment of a successor Custodian.
The Trustee may remove the Custodian at any time with the consent of
the Master Servicer. In such event, the Trustee shall appoint, or petition a
court of competent jurisdiction to appoint, a successor Custodian hereunder. Any
successor Custodian shall be a depository institution subject to supervision or
examination by federal or state authority, shall be able to satisfy the other
requirements contained in Section 3.7 and shall be unaffiliated with the related
Servicer or the Company.
Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this Section 3.5 shall
become effective upon acceptance of appointment by the successor Custodian. The
Trustee shall give prompt notice to the Company and the Master Servicer of the
appointment of any successor Custodian. No successor Custodian shall be
appointed by the Trustee without the prior approval of the Company and the
Master Servicer.
2.06 Merger or Consolidation of Custodian. Any Person into which the
Custodian may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Custodian shall be a party, or any Person succeeding to the business of the
Custodian, shall be the successor of the Custodian hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
2.07 Representations of the Custodian. The Custodian hereby represents
that it is a depository institution subject to supervision or examination by a
federal or state authority, has a combined capital and surplus of at least
$15,000,000 and is qualified to do business in the jurisdictions in which it
will hold any Mortgage File.
ARTICLE IV
MISCELLANEOUS PROVISIONS
2.01 Notices. All notices, requests, consents, demands and other
communications required under this Agreement or pursuant to any other instrument
or document delivered hereunder shall be in writing and, unless otherwise
specifically provided, may be delivered personally, by telegram or telex, or by
registered or certified mail, postage prepaid, return receipt requested, at the
addresses specified on the signature page hereof (unless changed by the
particular party whose address is stated herein by similar notice in writing),
in which case the notice will be deemed delivered when received.
2.02 Amendments. No modification or amendment of or supplement to this
Agreement shall be valid or effective unless the same is in writing and signed
by all parties hereto, and neither the Company, the Master Servicer nor the
Trustee shall enter into any amendment hereof except as permitted by the Pooling
and Servicing Agreement. The Trustee
G-6
shall give prompt notice to the Custodian of any amendment or supplement to the
Pooling and Servicing Agreement and furnish the Custodian with written copies
thereof.
2.03 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
2.04 Recordation of Agreement. To the extent permitted by applicable
law, this Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Company and at the Trust's expense on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (which
shall be at the expense of the party requesting such recordation and in no event
at the expense of the Trustee) reasonably satisfactory to the Company to the
effect that the failure to effect such recordation is likely to materially and
adversely affect the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
2.05 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
2.06 Third-Party Rights. Wilshire Credit Corporation shall be deemed a
third-party beneficiary of this Agreement to the same extent as if it were a
party hereto, and shall have the right to enforce the provisions of this
Agreement.
2.07 Identification of NIMs Insurer. All references in this Agreement
to the "NIMs Insurer" shall become operative only after notice from the
Depositor to the Trustee and the Custodian of the identification of the NIMs
Insurer.
G-7
IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
Address: HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
000 Xxxxx Xxxxxx By:
Xxx Xxxx, XX 00000 ------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
000 Xxxxx Xxxxxx By:
4 World Financial Center, 10th Floor ------------------------------------
Xxx Xxxx, XX 00000 Name:
----------------------------------
Title:
---------------------------------
XXXXX FARGO BANK, N.A.,
Address: as Master Servicer
0000 Xxx Xxxxxxxxx Xxxx By:
Xxxxxxxx, Xxxxxxxx 00000-0000 ------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: XXXXX FARGO BANK, N.A.,
as Custodian
0000 00xx Xxxxxx Xxxxxxxxx, XX 0031 By:
Xxxxxxxxxxx, XX 00000 ------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-8
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
___________, 200__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Pooling and Servicing Agreement, dated as of June 1, 2007, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator, Wilshire
Credit Corporation, as a servicer, and HSBC Bank USA, National
Association, as trustee, Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-OAR3
Mortgage Pass-Through Certificates
Ladies and Gentlemen:
Attached is the Custodian's preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) the existence of
any assumption, modification, written assurance, or substitution agreement, with
respect to any Mortgage File if no such documents appear in the Mortgage File
delivered to the Custodian.
XXXXX FARGO BANK, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-9
EXHIBIT TWO
FORM OF CUSTODIAN FINAL CERTIFICATION
____________, 2007
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ____________________
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Pooling and Servicing Agreement, dated as of June 1, 2007, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator, Wilshire
Credit Corporation, as a servicer, and HSBC Bank USA, National
Association, as trustee, Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-OAR3
Mortgage Pass-Through Certificates
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as noted on
the Schedule of Exceptions attached hereto, for each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attachment hereto), it has received a complete Mortgage File which includes
the documents required to be included in the Mortgage File as set forth in the
Pooling and Servicing Agreement.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any documents contained in any Mortgage File for any of the
Mortgage Loans listed on the Mortgage Loan Schedule to the Pooling and Servicing
Agreement, (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan or (iii) whether any Mortgage File should include any
flood insurance policy, any rider, addends, surety or guaranty agreement, power
of attorney, buy down agreement, assumption agreement, modification agreement,
written assurance or substitution agreement.
G-10
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
XXXXX FARGO BANK, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
G-11
EXHIBIT THREE
FORM OF CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN
REPORT ON ASSESSMENT COMPLIANCE
The assessment of compliance to be delivered by Xxxxx Fargo Bank shall address,
at a minimum, the criteria identified below as "Applicable Servicing Criteria":
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
-------------------------------------------------------------------------------- --------------------
REFERENCE CRITERIA
---------------- -------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor
the third party's performance and compliance with such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect
on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of the
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no
more than two business days following receipt, or such other
number of days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor
or to an investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved as
specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date,
or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than
the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items
are resolved within 90 calendar days of their original
identification, or such other number of days specified in the
transaction agreements.
G-12
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
-------------------------------------------------------------------------------- --------------------
REFERENCE CRITERIA
---------------- -------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance
with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and
regulations; and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and number
of mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
other number of days specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree
with cancelled checks, or other form of payment, or custodial
bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as X
required by the transaction agreements or related mortgage
loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as X
required by the transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
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.
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.
G-13
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
-------------------------------------------------------------------------------- --------------------
REFERENCE CRITERIA
---------------- -------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related penalty
or expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior
to these dates, or such other number of days specified in the
transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to
be made on behalf of an obligor are paid from the servicer's
funds and not charged to the obligor, unless the late payment
was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within
two business days to the obligor's records maintained by the
servicer, or such other number of days specified in the
transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
G-14
EXHIBIT H
ONE-MONTH LIBOR CORRIDOR TABLE
See Schedule A of Exhibit N
H-1
EXHIBIT I
FINAL MATURITY RESERVE ACCOUNT SCHEDULE
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
121 07/25/17 5,916,683
122 08/25/17 5,827,451
123 09/25/17 5,739,537
124 10/25/17 5,652,920
125 11/25/17 5,567,583
126 12/25/17 5,483,505
127 01/25/18 5,400,670
128 02/25/18 5,319,058
129 03/25/18 5,238,653
130 04/25/18 5,159,435
131 05/25/18 5,081,388
132 06/25/18 5,004,495
133 07/25/18 4,928,739
134 08/25/18 4,854,104
135 09/25/18 4,780,572
136 10/25/18 4,708,128
137 11/25/18 4,636,756
138 12/25/18 4,566,440
139 01/25/19 4,497,165
140 02/25/19 4,428,915
141 03/25/19 4,361,677
142 04/25/19 4,295,433
143 05/25/19 4,230,171
144 06/25/19 4,165,876
145 07/25/19 4,102,534
146 08/25/19 4,040,130
147 09/25/19 3,978,652
148 10/25/19 3,918,085
149 11/25/19 3,858,416
150 12/25/19 3,799,633
151 01/25/20 3,741,721
152 02/25/20 3,684,669
153 03/25/20 3,628,463
154 04/25/20 3,573,092
155 05/25/20 3,518,543
156 06/25/20 3,464,803
157 07/25/20 3,411,863
158 08/25/20 3,359,708
159 09/25/20 3,308,329
160 10/25/20 3,257,713
161 11/25/20 3,207,850
162 12/25/20 3,158,728
163 01/25/21 3,110,337
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
265 07/25/29 611,839
266 08/25/29 601,741
267 09/25/29 591,799
268 10/25/29 582,009
269 11/25/29 572,371
270 12/25/29 562,881
271 01/25/30 553,537
272 02/25/30 544,338
273 03/25/30 535,281
274 04/25/30 526,363
275 05/25/30 517,584
276 06/25/30 508,940
277 07/25/30 500,431
278 08/25/30 492,053
279 09/25/30 483,804
280 10/25/30 475,684
281 11/25/30 467,690
282 12/25/30 459,819
283 01/25/31 452,071
284 02/25/31 444,443
285 03/25/31 436,934
286 04/25/31 429,542
287 05/25/31 422,264
288 06/25/31 415,100
289 07/25/31 408,048
290 08/25/31 401,105
291 09/25/31 394,271
292 10/25/31 387,544
293 11/25/31 380,921
294 12/25/31 374,403
295 01/25/32 367,986
296 02/25/32 361,669
297 03/25/32 355,451
298 04/25/32 349,331
299 05/25/32 343,307
300 06/25/32 337,377
301 07/25/32 331,540
302 08/25/32 325,795
303 09/25/32 320,141
304 10/25/32 314,575
305 11/25/32 309,097
306 12/25/32 303,705
307 01/25/33 298,398
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
409 07/25/2041 36,759
410 08/25/2041 35,812
411 09/25/2041 34,882
412 10/25/2041 33,968
413 11/25/2041 33,071
414 12/25/2041 32,190
415 01/25/2042 31,325
416 02/25/2042 30,475
417 03/25/2042 29,641
418 04/25/2042 28,822
419 05/25/2042 28,018
420 06/25/2042 27,228
421 07/25/2042 26,452
422 08/25/2042 25,691
423 09/25/2042 24,944
424 10/25/2042 24,210
425 11/25/2042 23,490
426 12/25/2042 22,783
427 01/25/2043 22,089
428 02/25/2043 21,408
429 03/25/2043 20,740
430 04/25/2043 20,084
431 05/25/2043 19,440
432 06/25/2043 18,808
433 07/25/2043 18,188
434 08/25/2043 17,580
435 09/25/2043 16,983
436 10/25/2043 16,397
437 11/25/2043 15,823
438 12/25/2043 15,259
439 01/25/2044 14,706
440 02/25/2044 14,164
441 03/25/2044 13,632
442 04/25/2044 13,110
443 05/25/2044 12,598
444 06/25/2044 12,096
445 07/25/2044 11,604
446 08/25/2044 11,122
447 09/25/2044 10,648
448 10/25/2044 10,184
449 11/25/2044 9,730
450 12/25/2044 9,284
451 01/25/2045 8,846
I-1
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
164 02/25/21 3,062,666
165 03/25/21 3,015,704
166 04/25/21 2,969,441
167 05/25/21 2,923,866
168 06/25/21 2,878,970
169 07/25/21 2,834,743
170 08/25/21 2,791,174
171 09/25/21 2,748,255
172 10/25/21 2,705,975
173 11/25/21 2,664,326
174 12/25/21 2,623,297
175 01/25/22 2,582,881
176 02/25/22 2,543,067
177 03/25/22 2,503,847
178 04/25/22 2,465,213
179 05/25/22 2,427,155
180 06/25/22 2,389,666
181 07/25/22 2,352,736
182 08/25/22 2,316,358
183 09/25/22 2,280,524
184 10/25/22 2,245,225
185 11/25/22 2,210,454
186 12/25/22 2,176,203
187 01/25/23 2,142,465
188 02/25/23 2,109,231
189 03/25/23 2,076,495
190 04/25/23 2,044,248
191 05/25/23 2,012,485
192 06/25/23 1,981,197
193 07/25/23 1,950,378
194 08/25/23 1,920,021
195 09/25/23 1,890,119
196 10/25/23 1,860,665
197 11/25/23 1,831,653
198 12/25/23 1,803,076
199 01/25/24 1,774,928
200 02/25/24 1,747,203
201 03/25/24 1,719,894
202 04/25/24 1,692,995
203 05/25/24 1,666,500
204 06/25/24 1,640,404
205 07/25/24 1,614,700
206 08/25/24 1,589,382
207 09/25/24 1,564,445
208 10/25/24 1,539,884
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
308 02/25/33 293,175
309 03/25/33 288,034
310 04/25/33 282,975
311 05/25/33 277,995
312 06/25/33 273,094
313 07/25/33 268,271
314 08/25/33 263,524
315 09/25/33 258,853
316 10/25/33 254,255
317 11/25/33 249,731
318 12/25/33 245,278
319 01/25/34 240,896
320 02/25/34 236,584
321 03/25/34 232,341
322 04/25/34 228,165
323 05/25/34 224,056
324 06/25/34 220,012
325 07/25/34 216,033
326 08/25/34 212,117
327 09/25/34 208,265
328 10/25/34 204,474
329 11/25/34 200,743
330 12/25/34 197,073
331 01/25/35 193,461
332 02/25/35 189,908
333 03/25/35 186,412
334 04/25/35 182,971
335 05/25/35 179,587
336 06/25/35 176,257
337 07/25/35 172,980
338 08/25/35 169,757
339 09/25/35 166,586
340 10/25/35 163,466
341 11/25/35 160,396
342 12/25/35 157,377
343 01/25/36 154,406
344 02/25/36 151,484
345 03/25/36 148,609
346 04/25/36 145,781
347 05/25/36 142,999
348 06/25/36 140,262
349 07/25/36 137,570
350 08/25/36 134,922
351 09/25/36 132,318
352 10/25/36 129,756
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
452 02/25/2045 8,418
453 03/25/2045 7,998
454 04/25/2045 7,586
455 05/25/2045 7,183
456 06/25/2045 6,788
457 07/25/2045 6,400
458 08/25/2045 6,021
459 09/25/2045 5,649
460 10/25/2045 5,285
461 11/25/2045 4,928
462 12/25/2045 4,578
463 01/25/2046 4,236
464 02/25/2046 3,901
465 03/25/2046 3,572
466 04/25/2046 3,251
467 05/25/2046 2,936
468 06/25/2046 2,628
469 07/25/2046 2,326
470 08/25/2046 2,031
471 09/25/2046 1,742
472 10/25/2046 1,459
473 11/25/2046 1,182
474 12/25/2046 912
475 01/25/2047 647
476 02/25/2047 388
477 03/25/2047 134
478 04/25/2047 0
I-2
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
209 11/25/24 1,515,692
210 12/25/24 1,491,864
211 01/25/25 1,468,396
212 02/25/25 1,445,280
213 03/25/25 1,422,514
214 04/25/25 1,400,090
215 05/25/25 1,378,005
216 06/25/25 1,356,252
217 07/25/25 1,334,828
218 08/25/25 1,313,728
219 09/25/25 1,292,946
220 10/25/25 1,272,478
221 11/25/25 1,252,319
222 12/25/25 1,232,465
223 01/25/26 1,212,911
224 02/25/26 1,193,653
225 03/25/26 1,174,686
226 04/25/26 1,156,007
227 05/25/26 1,137,610
228 06/25/26 1,119,492
229 07/25/26 1,101,648
230 08/25/26 1,084,075
231 09/25/26 1,066,769
232 10/25/26 1,049,724
233 11/25/26 1,032,939
234 12/25/26 1,016,408
235 01/25/27 1,000,129
236 02/25/27 984,097
237 03/25/27 968,308
238 04/25/27 952,760
239 05/25/27 937,447
240 06/25/27 922,368
241 07/25/27 907,519
242 08/25/27 892,895
243 09/25/27 878,495
244 10/25/27 864,314
245 11/25/27 850,349
246 12/25/27 836,597
247 01/25/28 823,055
248 02/25/28 809,719
249 03/25/28 796,588
250 04/25/28 783,657
251 05/25/28 770,923
252 06/25/28 758,384
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
353 11/25/36 127,236
354 12/25/36 124,757
355 01/25/37 122,319
356 02/25/37 119,922
357 03/25/37 117,563
358 04/25/37 115,244
359 05/25/37 112,963
360 06/25/37 110,719
361 07/25/37 108,513
362 08/25/37 106,343
363 09/25/37 104,209
364 10/25/37 102,111
365 11/25/37 100,047
366 12/25/37 98,018
367 01/25/38 96,022
368 02/25/38 94,060
369 03/25/38 92,131
370 04/25/38 90,234
371 05/25/38 88,368
372 06/25/38 86,534
373 07/25/38 84,731
374 08/25/38 82,958
375 09/25/38 81,214
376 10/25/38 79,501
377 11/25/38 77,816
378 12/25/38 76,159
379 01/25/39 74,531
380 02/25/39 72,930
381 03/25/39 71,356
382 04/25/39 69,809
383 05/25/39 68,288
384 06/25/39 66,793
385 07/25/39 65,324
386 08/25/39 63,880
387 09/25/39 62,460
388 10/25/39 61,065
389 11/25/39 59,694
390 12/25/39 58,346
391 01/25/40 57,022
392 02/25/40 55,720
393 03/25/40 54,441
394 04/25/40 53,184
395 05/25/40 51,949
396 06/25/40 50,735
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
I-3
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
253 07/25/28 746,037
254 08/25/28 733,880
255 09/25/28 721,908
256 10/25/28 710,119
257 11/25/28 698,512
258 12/25/28 687,082
259 01/25/29 675,828
260 02/25/29 664,746
261 03/25/29 653,834
262 04/25/29 643,090
263 05/25/29 632,511
264 06/25/29 622,095
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
397 07/25/40 49,542
398 08/25/40 48,370
399 09/25/40 47,219
400 10/25/40 46,087
401 11/25/40 44,976
402 12/25/40 43,883
403 01/25/41 42,811
404 02/25/41 41,756
405 03/25/41 40,721
406 04/25/41 39,704
407 05/25/41 38,704
408 06/25/41 37,723
NOTIONAL
PAYMENT BALANCE
PERIOD DATE ($)
------ ---------- ---------
I-4
EXHIBIT J
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
See Exhibit 99.1 of this Filing
J-1
EXHIBIT K
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
(RMBS UNLESS OTHERWISE NOTED)
KEY: X - obligation
WHERE THERE ARE MULTIPLE CHECKS FOR CRITERIA THE ATTESTING PARTY WILL IDENTIFY
IN ITS MANAGEMENT ASSERTION THAT IT IS ATTESTING ONLY TO THE PORTION OF THE
DISTRIBUTION CHAIN IT IS RESPONSIBLE FOR IN THE RELATED TRANSACTION AGREEMENTS.
CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS
ASSIGNED TO THEM IN THE POOLING AND SERVICING AGREEMENT, DATED AS OF JUNE 1,
2007, AMONG XXXXXXX XXXXX MORTGAGE INVESTORS, INC., AS DEPOSITOR, XXXXX FARGO
BANK, N.A., AS MASTER SERVICER AND SECURITIES ADMINISTRATOR, WILSHIRE CREDIT
CORPORATION, AS SERVICER, AND HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE.
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ------------------------------------------- ------------------------ ---------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to X X
monitor any performance or other triggers
and events of default in accordance with
the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are X X
outsourced to third parties, policies and
procedures are instituted to monitor the
third party's performance and compliance
with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction N/A N/A
agreements to maintain a back-up servicer
for the Pool Assets are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions X
policy is in effect on the party
participating in the servicing function
throughout the reporting period in the
amount of coverage required by and
otherwise in accordance with the terms of
the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on pool assets are deposited into X X
the appropriate custodial bank accounts and
related bank clearing accounts no more than
two business days following receipt, or
such other number of days specified in the
transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on X X
behalf of an obligor or to an investor are
made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding X
collections, cash flows or distributions,
and any interest or other fees charged for
such advances, are made, reviewed and
approved as specified in the transaction
agreements.
1122(d)(2)(iv) The related accounts for the transaction, X X
such as cash reserve accounts or accounts
established as a form of over
collateralization, are separately
maintained (e.g., with respect to
commingling of cash) as set forth in the
transaction agreements.
K-1
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ------------------------------------------- ------------------------ ---------------
1122(d)(2)(v) Each custodial account is maintained at a X X
federally insured depository institution as
set forth in the transaction agreements.
For purposes of this criterion, "federally
insured depository institution" with
respect to a foreign financial institution
means a foreign financial institution that
meets the requirements of Rule 13k-1(b)(1)
of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to
prevent unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly X X
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.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be X X
filed with the Commission, are maintained
in accordance with the transaction
agreements and applicable Commission
requirements. Specifically, such reports
(A) are prepared in accordance with
timeframes and other terms set forth in the
transaction agreements; (B) provide
information calculated in accordance with
the terms specified in the transaction
agreements; (C) are filed with the
Commission as required by its rules and
regulations; and (D) agree with investors'
or the trustee's records as to the total
unpaid principal balance and number of Pool
Assets serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and X X
remitted in accordance with timeframes,
distribution priority and other terms set
forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are X X
posted within two business days to the
Servicer's investor records, or such other
number of days specified in the transaction
agreements.
1122(d)(3)(iv) Amounts remitted to investors per the X X
investor reports agree with cancelled
checks, or other form of payment, or
custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on pool assets is
maintained as required by the transaction
agreements or related pool asset documents.
1122(d)(4)(ii) Pool assets and related documents are
safeguarded as required by the transaction
agreements
1122(d)(4)(iii) Any additions, removals or substitutions to
the asset pool are made, reviewed and
approved in accordance with any conditions
or requirements in the transaction
agreements.
K-2
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ------------------------------------------- ------------------------ ---------------
1122(d)(4)(iv) Payments on pool assets, including any
payoffs, made in accordance with the
related pool asset documents are posted to
the Servicer's obligor records maintained
no more than two business days after
receipt, or such other number of days
specified in the transaction agreements,
and allocated to principal, interest or
other items (e.g., escrow) in accordance
with the related pool asset documents.
1122(d)(4)(v) The Servicer's records regarding the pool
assets agree with the Servicer's records
with respect to an obligor's unpaid
principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status
of an obligor's pool assets (e.g., loan
modifications or re-agings) are made,
reviewed and approved by authorized
personnel in accordance with the
transaction agreements and related pool
asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds
in lieu of foreclosure, foreclosures and
repossessions, as applicable) are
initiated, conducted and concluded in
accordance with the timeframes or other
requirements established by the transaction
agreements.
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a pool asset
is delinquent in accordance with the
transaction agreements. Such records are
maintained on at least a monthly basis, or
such other period specified in the
transaction agreements, and describe the
entity's activities in monitoring
delinquent pool assets including, for
example, phone calls, letters and payment
rescheduling plans in cases where
delinquency is deemed temporary (e.g.,
illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of
return for pool assets with variable rates
are computed based on the related pool
asset documents.
1122(d)(4)(x) Regarding any funds held in trust for an
obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the
obligor's pool asset documents, on at least
an annual basis, or such other period
specified in the transaction agreements;
(B) interest on such funds is paid, or
credited, to obligors in accordance with
applicable pool asset documents and state
laws; and (C) such funds are returned to
the obligor within 30 calendar days of full
repayment of the related pool assets, or
such other number of days specified in the
transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such
as tax or insurance payments) are made on
or before the related penalty or expiration
dates, as indicated on the appropriate
bills or notices for such payments,
provided that such support has been
received by the servicer at least 30
calendar days prior to these dates, or such
other number of days specified in the
transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection
with any payment to be made on behalf of an
obligor are paid from the Servicer's funds
and not charged to the obligor, unless the
late payment was due to the obligor's error
or omission.
K-3
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ------------------------------------------- ------------------------ ---------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor
are posted within two business days to the
obligor's records maintained by the
servicer, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and X
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.
K-4
EXHIBIT L
XXXXXXXX-XXXXX CERTIFICATION
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3
I, [identify the certifying individual], certify that:
1. I have reviewed the report on Form 10-K and all reports on Form
10-D required to be filed in respect of the period covered by this report on
Form 10-K of Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3 (the
"Exchange Act periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports, taken as
a whole, do not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
4. [I am responsible for reviewing the activities performed by the
servicer(s) and based on my knowledge and the compliance review(s) conducted in
preparing the servicer compliance statement(s) required in this report under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic
reports, the servicer(s) [has/have] fulfilled [its/their] obligations under the
servicing agreement(s) in all material respects; and]
5. All of the reports on assessment of compliance with servicing
criteria for ABS and their related attestation reports on assessment of
compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
L-1
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties [name of
servicer, subservicer, co-servicer, depositor or trustee].]
Date:
---------------------
----------------------------------------
[Signature]
[Title]
--------------------------------
L-2
EXHIBIT M
FORM OF BACK-UP XXXXXXXX-XXXXX CERTIFICATION
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3
[_______], the [_______] of [_______] (the "Company") hereby certifies
to the Depositor, the Master Servicer and the Securities Administrator, and each
of their officers, directors and affiliates that:
(1) I, or persons under my supervision, have reviewed [the servicer
compliance statement of the Company provided in accordance with Item 1123 of
Regulation AB (the "Compliance Statement"),] the report on assessment of the
Company's compliance with the Servicing Criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with Rules
13a-18 and 15d-18 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Item 1122 of Regulation AB (the "Servicing Assessment"), the
registered public accounting firm's attestation report provided in accordance
with Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), and all servicing reports, officer's
certificates and other information relating to the servicing of the Mortgage
Loans by the Company during 200[ ] that were delivered by the Company to any of
the Depositor, the Master Servicer and the Trustee pursuant to the Agreement
(collectively, the "Company Servicing Information") and used by such parties in
the report on Form 10-K and all reports on Form 10-D to be filed in respect of
such year;
(2) Based on my knowledge, the Company Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been provided to
the Depositor, the Master Servicer and the Securities Administrator;
(4) I am responsible for reviewing the activities performed by
[_______] as [_______] under the [_______] (the "Agreement"), and based on my
knowledge [and the compliance review conducted in preparing the Compliance
Statement] and except as disclosed in
M-1
[the Compliance Statement,] the Servicing Assessment or the Attestation
Report, the Company has fulfilled its obligations under the Agreement in all
material respects; and
(5) [The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and] [The] [the] Servicing Assessment and Attestation
Report required to be provided by the Company and [by any Subservicer or
Subcontractor] pursuant to the Agreement, have been provided to the Depositor,
the Master Servicer and the Securities Administrator. Any material instances of
noncompliance described in such reports have been disclosed to the Depositor,
the Master Servicer and the Securities Administrator. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such reports.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement, dated as of June 1,
2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the
"Master Servicer") and securities administrator (in such capacity, the
"Securities Administrator"), Wilshire Credit Corporation, as servicer (the
"Servicer) and HSBC Bank USA, National Association, as trustee (the "Trustee").
In giving the certifications above, I have reasonably relied on
information provided to me by unaffiliated parties other than the Company's
Subservicers, if any, and Subcontractors, and including the Depositor, the
Master Servicer, the Trustee and the originators and prior servicers of the
Mortgage Loans.
[_______]
as [_______]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
M-2
EXHIBIT N
FORM OF CORRIDOR CONTRACT
N-1
Date: June 29, 2007
To: Xxxxxxx Xxxxx Alternative Note From: Xxxxxx Xxxxxxx Capital Services Inc.
Asset Trust, Series 2007-OAR3
Mortgage Pass-Through Certificates Attn: New York Derivative Client Services Group
Attn: Xxxxx Fargo Bank, National Association Fax: (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000 Tel: (000) 000-0000
Attn: Client Manager - MANA 2007-OAR3
Fax: (000) 000-0000
Tel: (000) 000-0000
Re: Corridor Reference Number KQBRM
The purpose of this letter agreement is to confirm the terms and
conditions of the Transaction entered into between Xxxxx Fargo Bank, National
Association, not in its individual capacity but solely as Securities
Administrator on behalf of the Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-OAR3 Mortgage Pass-Through Certificates created pursuant to the
Pooling and Servicing Agreement dated as of June 1, 2007 among, Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor, Xxxxx Fargo Bank, National Association,
as master servicer and securities administrator, Wilshire Credit Corporation, as
a servicer and HSBC Bank USA, National Association, as trustee (the "PSA") and
Xxxxxx Xxxxxxx Capital Services Inc., on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the ISDA Master Agreement below.
The definitions and provisions contained in the 2000 ISDA Definitions
(as published by the International Swaps and Derivatives Association, Inc.) are
incorporated into this Confirmation. In the event of any inconsistency between
those definitions and this Confirmation, this Confirmation will govern.
1. This Confirmation evidences a complete, binding agreement between
you and us as to the terms of the Transaction to which this Confirmation
relates. In addition, this Confirmation supplements, forms a part of, and is
subject to an agreement in the form of the 1992 ISDA Master Agreement
(Multicurrency-Cross Border), with such modifications as are specified herein,
as if we had executed an Agreement in such form on the Trade Date of the first
such Transaction between us (the "Agreement"). All provisions contained or
incorporated by reference in the Agreement shall govern this Confirmation except
as expressly modified below. In the event of any inconsistency between the
provisions of that Agreement and this Confirmation, this Confirmation will
prevail for the purpose of this Transaction.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Party A:.................. Xxxxxx Xxxxxxx Capital Services Inc.
N-2
Party A Credit Support:... Payments guaranteed by Xxxxxx Xxxxxxx
Party B:.................. Xxxxxxx Xxxxx Alternative Note Asset
Trust, Series 2007-OAR3 Mortgage
Pass-Through Certificates
Trade Date:............... June 26, 2007
Effective Date:........... June 29, 2007
Termination Date:......... May 25, 2008
Notional Amount:.......... With respect to any Calculation Period,
the lesser of (i) the amount set forth
for such period in Schedule A attached
hereto and (ii) the Certificate Principal
Balance of the Offered Certificates
immediately prior to the related
Distribution Date (as such terms are
defined in the PSA).
FIXED AMOUNTS:
Fixed Amount Payer: Party B.
Fixed Amount Payer Payment Date: June 28, 2007
FLOATING AMOUNTS:
Floating Amount: To be determined in accordance with
the following formula:
Greater of (i) (Floating Rate Option
minus Strike Rate) * Notional Amount *
Floating Rate Day Count Fraction, and
(ii) zero.
Floating Rate Payer: Party A
Strike Rate: With respect to any Calculation
Period, the amount set forth for such
period in Schedule A attached hereto.
Floating Rate Payer Payment Dates: Early Payment - For each Calculation
Period, the first Business Day prior
to each Floating Rate Payer Period End
Date.
Floating Rate Payer Period End Date(s): The 25th of each month in each year
from (and including) July 25, 2007 to
(and including) the Termination Date
with no adjustment to Period End
Dates. For the avoidance of doubt, the
initial Calculation Period will accrue
from and including the Effective Date
to but excluding July 25, 2007 and the
final Calculation Period will accrue
from and including April 25, 2008 to
but excluding the Termination Date.
Floating Rate Option: USD-LIBOR-BBA, provided, however, that
if the Floating Rate determined from
such Floating Rate Option for any
Calculation Period is greater than
10.200% per annum for such Calculation
N-3
Period, then the Floating Rate for
such Calculation Period shall be
deemed to be equal to 10.200% per
annum.
Designated Maturity: 1 Month
Floating Rate Day Count Fraction: Act/360
Reset Dates: The first day of each Calculation
Period.
Compounding:..................... Inapplicable
Business Days:................... New York
Calculation Agent:............... Party A.
3. Account Details:
Payments to Party A: Citibank, New York
ABA No. 021 000 089
For: Xxxxxx Xxxxxxx Capital Services Inc.
Account No. 0000 0000
Operations Contact: Operations
Tel: 000-000-0000
Fax: 000-000-0000
Payments to Party B: Xxxxx Fargo Bank, National Association
ABA No.: 121 000 248
Account No: 0000000000
Acct Name: SAS Clearing
Ref: FFC: 53163402, MANA 0000-XXX0 (xxxxxxxx)
4. Modifications to the Agreement:
The parties hereby agree to amend the Agreement referenced in
paragraph 1 above as follows:
(a) "CROSS DEFAULT" applies to Party A but not to Party B.
(b) FULLY-PAID TRANSACTIONS. Notwithstanding the terms of Sections 5
and 6 of the Agreement, if Party B has satisfied in full all of its payment
obligations under Section 2(a)(i) of the Agreement, then unless Party A is
required pursuant to appropriate proceedings to return to Party B or otherwise
returns to Party B upon demand of Party B any portion of such payment, (a) the
occurrence of an event described in Section 5(a) of the Agreement with respect
to Party B shall not constitute an Event of Default or Potential Event of
Default with respect to Party B as the Defaulting Party and (b) Party A shall be
entitled to designate an Early Termination Event pursuant to Section 6 of the
Agreement only as a result of a Termination Event set forth in either Section
5(b)(i) or Section 5(b)(ii) of the Agreement with respect to Party A as the
Affected Party or Section 5(b)(iii) of the Agreement with respect to Party A as
the Burdened Party. For purposes of the Transaction to which this Confirmation
N-4
relates, Party B's only obligation under Section 2(a)(i) of the Agreement is to
pay the Fixed Amount on the Fixed Rate Payer Payment Date.
(c) "THRESHOLD AMOUNT" means, with respect to a party, U.S.
$10,000,000 (or the equivalent in another currency, currency unit or combination
thereof).
(d) PAYMENTS ON EARLY TERMINATION. "Market Quotation" and "Second
Method" will apply for the purpose of Section 6(e) of this Agreement.
(e) "TERMINATION CURRENCY" means United States Dollars.
(f) PARTY A AND PARTY B PAYER TAX REPRESENTATIONS. For the purpose of
Section 3(e), each of Party A and Party B makes the following representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of
any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment
(other than interest under Section 2(e), 6(d)(ii) or 6(e))
to be made by it to the other party under this Agreement. In
making this representation, it may rely on (i) the accuracy
of any representation made by the other party pursuant to
Section 3(f); (ii) the satisfaction of the agreement of the
other party contained in Section 4(a)(i) or 4(a)(iii) and
the accuracy and effectiveness of any document provided by
the other party pursuant to Section 4(a)(i) or 4(a)(iii);
and (iii) the satisfaction of the agreement of the other
party contained in Section 4(d), provided that it shall not
be a breach of this representation where reliance is placed
on clause (ii) and the other party does not deliver a form
or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(g) PAYEE TAX REPRESENTATIONS.
(i) For the purpose of Section 3(f), Party A makes the following
representation:
It is a corporation duly organized and incorporated under the
laws of the State of Delaware and is not a foreign corporation
for United States tax purposes.
(ii) For the purpose of Section 3(f), Party B makes the following
representation:
It is a trust duly formed under the laws of the State of New York
and is not a foreign corporation for United States tax purposes.
(h) GOVERNING LAW; JURISDICTION. This Agreement and each Credit
Support Document will be governed by and construed in accordance with the laws
of the State of New York without regard to conflict of law provisions thereof
other than New York General Obligations Law Sections 5-1401 and 5-1402. Section
13(b) is amended by: (1) deleting "non-" from the second line of clause (i); and
(2) deleting the final paragraph.
(i) WAIVER OF JURY TRIAL. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect
of any Proceedings relating to the Agreement or any Credit Support Document.
N-5
(j) "AFFILIATE" has the meaning specified in Section 14, but excludes
Xxxxxx Xxxxxxx Derivative Products Inc.
(k) ADDITIONAL REPRESENTATIONS. Section 3 is hereby amended by adding
at the end thereof the following Subparagraphs:
(i) It is an "eligible contract participant" within the meaning of
Section 1a(12) of the Commodity Exchange Act (7 U.S.C. 1a), as amended by
the Commodity Futures Modernization Act of 2000.
(ii) It has entered into this Agreement (including each Transaction
evidenced hereby) in conjunction with its line of business (including
financial intermediation services) or the financing of its business.
(iii) It is entering into this Agreement, any Credit Support Document
to which it is a party, each Transaction and any other documentation
relating to this Agreement or any Transaction as principal (and not as
agent or in any other capacity, fiduciary or otherwise).
(iv) ERISA Representation.
(A) Party A represents and warrants at all times hereunder that
it is not a pension plan or employee benefit plan and that it is not
using assets of any such plan or assets deemed to be assets of such a
plan in connection with any Transaction under this Agreement, and
(B) Party B represents and warrants at all times hereunder that
(x) it is not a pension plan or employee benefit plan, and (y) (1)
that it is not acting on behalf of any such plan or using assets of
any such plan or assets deemed to be assets of any such plan in
connection with any Transaction under this Agreement or (2) any
pension plan or employee benefits plan subject to 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"), or any person who is acting on behalf of such a plan, or
using assets of such plan or assets deemed to be "plan assets" of such
plan for purposes of ERISA or the Code, who purchases a certificate
issued by the Trust while this Agreement is in existence (i) shall
represent or shall be deemed to represent that the purchase and
holding of such certificate is in reliance on at least one of the
Prohibited Transaction Class Exemptions of 00-00, 00-0, 00-00, 00-00
xx 00-00 xx (xx) shall provide an opinion of counsel which states that
such purchase and holding is permissible under applicable law and will
not result in a prohibited transaction under ERISA or Section 4975 of
the Code."
(l) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to
represent to the other party on the date on which it enters into a Transaction
that (absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
N-6
(i) NON-RELIANCE. In the case of Party A, it is acting for its own
account, and in the case of Party B, the Securities Administrator is acting
on behalf of the Trust. Party A has made its own independent decisions to
enter into this Transaction and as to whether such Transaction is
appropriate or proper for it based upon its own judgment and upon advice
from such advisers as it has deemed necessary and, with respect to Party B,
it has entered into this Transaction under this Agreement as directed under
the PSA. It is not relying on any communication (written or oral) of the
other party as investment advice or as a recommendation to enter into this
Transaction; it being understood that information and explanations related
to the terms and conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into this Transaction. No
communication (written or oral) received from the other party shall be
deemed to be an assurance or guarantee as to the expected results of each
such Transaction.
(ii) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions
and risks of that Transaction. It is also capable of assuming, and assumes,
the risks of that Transaction.
(iii) STATUS OF PARTIES. Party A and Party B are not acting as a
fiduciary for or an adviser to each other in respect of that Transaction.
(iv) FIDUCIARY CAPACITY. It is expressly understood and agreed by the
parties hereto that (i) this Confirmation is executed and delivered by
Xxxxx Fargo Bank, National Association, not in its individual capacity but
solely as Securities Administrator on behalf of the Trust under the PSA in
the exercise of the powers and authority conferred to and vested in it
thereunder, (ii) each of the representations, undertakings and agreements
herein made on behalf of the Trust created under the PSA is made and
intended not as personal representation, undertaking or agreement of the
Securities Administrator, but is made and intended for the purpose of
binding only the Trust and (iii) under no circumstances shall Xxxxx Fargo
Bank, National Association in its individual capacity be personally liable
for the payment of any indebtedness or expenses or be personally liable for
the breach or failure of any obligation, representation, warranty or
covenant made or undertaken under this Confirmation.
(m) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
(i) Address for notices or communications to Party A:
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Legal Officer
Facsimile No.: 000-000-0000
N-7
(ii) Address for notices or communications to Party B:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - MANA 2007-OAR3
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
(n) SET-OFF. Notwithstanding any provision of this Agreement or any
other existing or future agreement, each party irrevocably waives any and all
rights it may have to set off, net, recoup or otherwise withhold or suspend or
condition payment or performance of any obligation between it and the other
party hereunder against any obligation between it and the other party under any
other agreements. The provisions for Set-Off set forth in Section 6(e) of the
Agreement shall not apply for purposes of this Transaction.
(o) NOTICES. Section 12(a) is amended by adding in the third line
thereof after the phrase "messaging system" and before the ")" the words, ";
provided, however, any such notice or other communication may be given by
facsimile transmission if telex is unavailable, no telex number is supplied to
the party providing notice, or if answer back confirmation is not received from
the party to whom the telex is sent."
(p) OBLIGATIONS. Section 2 is amended by adding the following to the
end thereof:
"(f) Party B shall deliver or cause to be delivered to Party A
IRS Form W-9 (or successor thereto) as soon as is practicable
after the Effective Date."
(q) REGULATION AB. Upon request by the Depositor, Party A may, at its
option, but is not required to, (A) (a) provide the financial information
required by Item 1115(b)(1) or (b)(2) of Regulation AB (as specified by the
Depositor to Party A) with respect to Party A (or any guarantor of Party A if
providing the financial data of a guarantor is permitted under Regulation AB)
and any affiliated entities providing derivative instruments to Party B (the
"Company Financial Information"), in a form appropriate for use in the Exchange
Act Reports and in an XXXXX-compatible form; (b) if applicable, cause its
accountants to issue their consent to filing or incorporation by reference of
such financial statements in the Exchange Act Reports of Party B and (c) within
5 Business Days of the release of any updated financial information, provide
current Company Financial Information as required under Item 1115(b) of
Regulation AB to the Depositor in an XXXXX-compatible form and, if applicable,
cause its accountants to issue their consent to filing or incorporation by
reference of such financial statements in the Exchange Act Reports of Party A or
(B) assign this Agreement at its own cost to another entity that has agreed to
take the actions described in clause (A) of this sentence with respect to itself
(and which has the same or better rating from the Rating Agencies as Party A as
of the date of such assignment). For the avoidance of doubt, Party A is not
required to take any action pursuant to this paragraph and the failure of Party
A to take any such action will not constitute an Event of Default under this
Agreement.
As used in this Agreement the following words shall have the following meanings:
N-8
"DEPOSITOR" shall mean Xxxxxxx Xxxxx Mortgage Investors, Inc.
"XXXXX" shall mean the Commission's Electronic Data Gathering, Analysis and
Retrieval system.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended and
the rules and regulations promulgated thereunder
"EXCHANGE ACT REPORTS" shall mean all Distribution Reports on Form 10-D, Current
Reports on Form 8-K and Annual Reports on Form 10-K that are to be filed with
respect to Party B pursuant to the Exchange Act.
"PROSPECTUS SUPPLEMENT" shall mean the prospectus supplement prepared in
connection with the public offering and sale of the Offered Certificates.
"RATING AGENCY" shall mean each of Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc. and Xxxxx'x Investors Service, Inc. If any such
organization or a successor is no longer in existence, "Rating Agency" shall be
such nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall be
given to the Trustee. References herein to a given rating category of a Rating
Agency shall mean such rating category without giving effect to any modifiers.
"REGULATION AB" shall mean the Asset Backed Securities Regulation AB, 17 C.F.R.
Sections 229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (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.
(r) Xxxxxxx Xxxxx Mortgage Lending, Inc. ("MLML") agrees and
acknowledges that amounts paid hereunder are not intended to benefit the holder
of any class of certificates rated by any rating agency if such holder is MLML
or any of its affiliates. If MLML or any of its affiliates receives any such
amounts, it will promptly remit (or, if such amounts are received by an
affiliate of MLML, MLML hereby agrees that it will cause such affiliate to
promptly remit) such amounts to the Securities Administrator, whereupon such
Securities Administrator will promptly remit such amounts to MSCS. MLML further
agrees to provide notice to MSCS upon any remittance to the Securities
Administrator.
(s) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will
not apply to Party A and will not apply to Party B.
(t) MULTIBRANCH PARTY. For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
N-9
(u) AGREEMENT TO DELIVER DOCUMENTS. For the purpose of Sections
4(a)(i) and (ii), each party agrees to deliver the following documents, as
applicable:
(i) Tax forms, documents or certificates to be delivered are:
PARTY
REQUIRED
TO
DELIVER
DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
-------- ---------------------------------- --------------------------------
Party A A correct, complete and duly (i) Upon entering into this
executed IRS Form W-9. Agreement, (ii) promptly
upon reasonable demand by
Party B, and (iii) promptly
upon learning that any such
Form previously provided by
Party A has become obsolete
or incorrect.
Party B (i) A correct, complete and duly (a) With respect to clause (i)
executed IRS Form W-9 (or any of the adjacent column, the
successor thereto) that Supplemental Interest Trust
eliminates U.S. federal Trustee shall apply for the
withholding and backup employer identification
withholding tax on payments number of the Supplemental
under this Agreement, (ii) if Interest Trust promptly
requested by Party A, a upon entering into this
correct, complete and duly Agreement and deliver the
executed Form W-8IMY, and related correct, complete
(iii) a complete and executed and duly executed IRS Form
IRS Form X-0, X-0XXX, X-0XXX, W-9 promptly upon receipt,
or W-8IMY (with attachments) and in any event, no later
(as appropriate) from each than the first Payment Date
Certificateholder that is not of this Transaction; (b) in
an "exempt recipient" as that the case of a W-8ECI,
term is defined in Treasury W-8IMY, and W-8BEN that
regulations section does not include a U.S.
1.6049-4(c)(ii), that taxpayer identification
eliminates U.S. federal number in line 6, before
withholding and backup December 31 of each third
withholding tax on payments succeeding calendar year,
under this Agreement. (c) promptly upon
reasonable demand by Party
A, and (d) promptly upon
actual knowledge that any
such Form previously
provided by Party B has
become obsolete or
incorrect.
N-10
(ii) Other documents to be delivered are:-
PARTY
REQUIRED
TO COVERED BY
DELIVER SECTION 3(D)
DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED REPRESENTATION
-------- ---------------------------------- -------------------------------- --------------
Party A Either (1) a signature booklet The earlier of the fifth Yes
and containing secretary's certificate Business Day after the Trade
Party B and resolutions ("authorizing Date of the first Transaction or
resolutions") authorizing the upon execution of this Agreement
party to enter into derivatives and as deemed necessary for any
transactions of the type further documentation.
contemplated by the parties or (2)
a secretary's certificate,
authorizing resolutions and
incumbency certificate, in either
case, for such party and any
Credit Support Provider of such
party reasonably satisfactory in
form and substance to the other
party.
Party B An executed copy of the Pooling Upon execution of this Yes
and Servicing Agreement ("PSA"), Agreement.
dated as of June 1, 2007, among,
inter alia, Merrill Lynch Mortgage
Investors, Inc., as Depositor,
Xxxxx Fargo Bank, National
Association, as Master Servicer
and Securities Administrator and
HSBC Bank USA, National
Association, as Trustee.
Party A An opinion of counsel reasonably As soon as practicable after the No
and satisfactory in form and substance execution of this Agreement.
Party B to the other party.
N-11
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing this Confirmation and returning it to us.
Best Regards,
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking
association, not individually,
but solely as Securities
Administrator on behalf of the
Xxxxxxx Xxxxx Alternative Note
Asset Trust, Series 2007-OAR3
Mortgage Pass-Through
Certificates
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
N-12
SCHEDULE A
CALCULATION PERIOD
-----------------------------------------
(FROM AND INCLUDING) (TO BUT EXCLUDING) STRIKE RATE NOTIONAL AMOUNT ($)
-------------------- ------------------ ----------- -------------------
Effective Date 07/25/2007 7.347 388,234,000
07/25/2007 08/25/2007 6.360 379,860,618
08/25/2007 09/25/2007 6.360 371,667,258
09/25/2007 10/25/2007 6.582 363,651,360
10/25/2007 11/25/2007 6.360 355,809,018
11/25/2007 12/25/2007 6.582 348,136,409
12/25/2007 01/25/2008 6.360 340,629,798
01/25/2008 02/25/2008 6.360 333,285,533
02/25/2008 03/25/2008 6.819 326,100,044
03/25/2008 04/25/2008 6.360 319,069,839
04/25/2008 Termination Date 6.582 312,191,506
N-13
EXHIBIT O
ADDITIONAL DISCLOSURE NOTIFICATION
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
RE: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3 **Additional
Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section 3.18(b) of the Pooling and Servicing
Agreement, dated as of June 1, 2007, among Xxxxxxx Xxxxx Mortgage Investors,
Inc., as depositor, Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator, Wilshire Credit Corporation, as servicer, and HSBC Bank USA,
National Association, as trustee, the undersigned, as [ ], hereby notifies you
that certain events have come to our attention that [will] [may] need to be
disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[______________], phone number: [________________]; email address:
[______________].
[NAME OF PARTY],
as [role]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
O-1
EXHIBIT P
FORM OF ITEM 1123 CERTIFICATION OF SERVICER
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-OAR3 Mortgage
Pass-Through Certificates
I, [identify name of certifying individual], [title of certifying individual] of
[name of servicing company] (the "Servicer"), hereby certify that:
(1) A review of the activities of the Servicer during the preceding
calendar year and of the performance of the Servicer under the Pooling and
Servicing Agreement (the "Servicing Agreement") has been made under my
supervision; and
(2) To the best of my knowledge, based on such review, the Servicer
has fulfilled all its obligations under the Servicing Agreement in all material
respects throughout such year or a portion thereof[, or, if there has been a
failure to fulfill any such obligation in any material respect, I have specified
below each such failure known to me and the nature and status thereof].
Date:
---------------
[Servicer]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
P-1
EXHIBIT Q-1
ADDITIONAL FORM 10-D DISCLOSURE
ADDITIONAL FORM 10-D DISCLOSURE
ITEM ON FORM 10-D PARTY RESPONSIBLE
----------------- -----------------
ITEM 1: DISTRIBUTION AND POOL
PERFORMANCE INFORMATION
Information included in the [Monthly Master Servicer
Statement] Servicer
Securities Administrator
Any information required by 1121 Depositor
which is NOT included on the [Monthly
Statement]
ITEM 2: LEGAL PROCEEDINGS
Any legal proceeding pending against
the following entities or their
respective property, that is material
to Certificateholders, including any
proceeding known to be contemplated
by governmental authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities
Administrator and Depositor
- Sponsor (Seller) Seller (if a party to the Pooling and
Servicing Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other Servicer
than the Master Servicer or
Securities Administrator)
- Any other party contemplated by Depositor
1100(d)(1)
ITEM 3: SALE OF SECURITIES AND USE OF Depositor
PROCEEDS
Information from Item 2(a) of Part II
of Form 10-Q:
With respect to any sale of
securities by the sponsor, depositor
or issuing entity, that are backed by
the same asset pool or are otherwise
issued by the issuing entity, whether
or not registered, provide the sales
and use of proceeds information in
Item 701 of Regulation S-K. Pricing
information can be omitted if
securities were not registered.
Q-1-1
ADDITIONAL FORM 10-D DISCLOSURE
ITEM ON FORM 10-D PARTY RESPONSIBLE
----------------- -----------------
ITEM 4: DEFAULTS UPON SENIOR Securities Administrator
SECURITIES Trustee
Information from Item 3 of Part II of
Form 10-Q:
Report the occurrence of any Event of
Default (after expiration of any
grace period and provision of any
required notice)
ITEM 5: SUBMISSION OF MATTERS TO A Securities Administrator
VOTE OF SECURITY HOLDERS Trustee
Information from Item 4 of Part II of
Form 10-Q
ITEM 6: SIGNIFICANT OBLIGORS OF POOL Depositor
ASSETS
Item 1112(b) - Significant Obligor
Financial Information*
* This information need only be
reported on the Form 10-D for
the distribution period in which
updated information is required
pursuant to the Item.
ITEM 7: SIGNIFICANT ENHANCEMENT
PROVIDER INFORMATION
Item 1114(b)(2) - Credit Enhancement
Provider Financial Information*
- Determining applicable Depositor
disclosure threshold
- Requesting required financial Depositor
information (including any
required accountants' consent to
the use thereof) or effecting
incorporation by reference
Item 1115(b) - Derivative
Counterparty Financial Information*
- Determining current maximum Depositor
probable exposure
- Determining current significance Depositor
percentage
- Requesting required financial Depositor
information (including any
required accountants' consent to
the use thereof) or effecting
incorporation by reference
* This information need only be
reported on the Form 10-D for
the distribution period in which
updated information is required
pursuant to the Items.
Q-1-2
ADDITIONAL FORM 10-D DISCLOSURE
ITEM ON FORM 10-D PARTY RESPONSIBLE
----------------- -----------------
ITEM 8: OTHER INFORMATION Any party responsible for the
applicable Form 8-K Disclosure item
Disclose any information required to
be reported on Form 8-K during the
period covered by the Form 10-D but
not reported
ITEM 9: EXHIBITS
Monthly Statement to Securities Administrator
Certificateholders
Exhibits required by Item 601 of Depositor
Regulation S-K, such as material
agreements
Q-1-3
EXHIBIT Q-2
ADDITIONAL FORM 10-K DISCLOSURE
ADDITIONAL FORM 10-K DISCLOSURE
ITEM ON FORM 10-K PARTY RESPONSIBLE
----------------- -----------------
ITEM 1B: UNRESOLVED STAFF COMMENTS Depositor
ITEM 9B: OTHER INFORMATION Any party responsible for disclosure
items on Form 8-K
Disclose any information required to
be reported on Form 8-K during the
fourth quarter covered by the Form
10-K but not reported
ITEM 15: EXHIBITS, FINANCIAL Securities Administrator
STATEMENT SCHEDULES Depositor
REG AB ITEM 1112(B): SIGNIFICANT
OBLIGORS OF POOL ASSETS
Significant Obligor Financial Depositor
Information*
* This information need only be
reported on the Form 10-K if
updated information is required
pursuant to the Item.
REG AB ITEM 1114(B)(2): CREDIT
ENHANCEMENT PROVIDER FINANCIAL
INFORMATION
- Determining applicable Depositor
disclosure threshold
- Requesting required financial Depositor
information (including any
required accountants' consent to
the use thereof) or effecting
incorporation by reference
* This information need only be
reported on the Form 10-K if
updated information is required
pursuant to the Item.
REG AB ITEM 1115(B): DERIVATIVE
COUNTERPARTY FINANCIAL INFORMATION
- Determining current maximum Depositor
probable exposure
- Determining current significance Depositor
percentage
- Requesting required financial Depositor
information (including any
required accountants' consent to
the use thereof) or effecting
incorporation by reference
* This information need only be
reported on the Form 10-K if
updated information is required
pursuant to the Item.
REG AB ITEM 1117: LEGAL PROCEEDINGS
Any legal proceeding pending against
the following entities or their
respective property, that is material
to Certificateholders, including any
proceeding known to be contemplated
by
Q-2-1
ADDITIONAL FORM 10-K DISCLOSURE
ITEM ON FORM 10-K PARTY RESPONSIBLE
----------------- -----------------
governmental authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities
Administrator and Depositor
- Sponsor (Seller) Seller (if a party to the Pooling and
Servicing Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other Servicer
than the Master Servicer or
Securities Administrator)
- Any other party contemplated by Depositor
1100(d)(1)
REG AB ITEM 1119: AFFILIATIONS AND
RELATIONSHIPS
Whether (a) the Sponsor (Seller), Depositor as to (a)
Depositor or Issuing Entity is an Sponsor/Seller as to (a)
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
- Securities Administrator Securities Administrator
- Trustee Trustee
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material Depositor/Sponsor
party
Whether there are any "outside the Depositor as to (a)
ordinary course business Sponsor/Seller as to (a)
arrangements" other than would be
obtained in an arm's length
transaction between (a) the Sponsor
(Seller), Depositor or Issuing Entity
on the one hand, and (b) any of the
following parties (or their
affiliates) on the other hand, that
exist currently or within the past
two years and that are material to a
Certificateholder's understanding of
the Certificates:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
Q-2-2
ADDITIONAL FORM 10-K DISCLOSURE
ITEM ON FORM 10-K PARTY RESPONSIBLE
----------------- -----------------
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material Depositor/Sponsor
party
Whether there are any specific Depositor as to (a)
relationships involving the Sponsor/Seller as to (a)
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:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material Depositor/Sponsor
party
Q-2-3
EXHIBIT Q-3
FORM 8-K DISCLOSURE INFORMATION
FORM 8-K DISCLOSURE INFORMATION
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------- -----------------
ITEM 1.01- ENTRY INTO A MATERIAL All parties
DEFINITIVE AGREEMENT
Disclosure is required regarding entry
into or amendment of any definitive
agreement that is material to the
securitization, even if depositor is
not a party.
Examples: servicing agreement,
custodial agreement.
Note: disclosure not required as to
definitive agreements that are fully
disclosed in the prospectus
ITEM 1.02- TERMINATION OF A MATERIAL All parties
DEFINITIVE AGREEMENT
Disclosure is required regarding
termination of any definitive
agreement that is material to the
securitization (other than expiration
in accordance with its terms), even if
depositor is not a party.
Examples: servicing agreement,
custodial agreement.
ITEM 1.03- BANKRUPTCY OR RECEIVERSHIP Depositor
Disclosure is required regarding the
bankruptcy or receivership, with
respect to any of the following:
- Sponsor (Seller) Depositor/Sponsor (Seller)
- Depositor Depositor
- Master Servicer Master Servicer
- Affiliated Servicer Servicer
- Other Servicer servicing 20% or Servicer
more of the pool assets at
the time of the report
- Other material servicers Servicer
- Trustee Trustee
- Securities Administrator Securities Administrator
- Significant Obligor Depositor
- Credit Enhancer (10% or more) Depositor
- Derivative Counterparty Depositor
- Custodian Custodian
Q-3-1
FORM 8-K DISCLOSURE INFORMATION
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------- -----------------
ITEM 2.04- TRIGGERING EVENTS THAT Depositor
ACCELERATE OR INCREASE A DIRECT Master Servicer
FINANCIAL OBLIGATION OR AN OBLIGATION Securities Administrator
UNDER AN OFF-BALANCE SHEET ARRANGEMENT
Includes an early amortization,
performance trigger or other event,
including event of default, that would
materially alter the payment
priority/distribution of cash
flows/amortization schedule.
Disclosure will be made of events
other than waterfall triggers which
are disclosed in the monthly
statements to the certificateholders.
ITEM 3.03- MATERIAL MODIFICATION TO Securities Administrator
RIGHTS OF SECURITY HOLDERS Trustee
Depositor
Disclosure is required of any material
modification to documents defining the
rights of Certificateholders,
including the Pooling and Servicing
Agreement.
ITEM 5.03- AMENDMENTS OF ARTICLES OF Depositor
INCORPORATION OR BYLAWS; CHANGE OF
FISCAL YEAR
Disclosure is required of any
amendment "to the governing documents
of the issuing entity".
ITEM 6.01- ABS INFORMATIONAL AND Depositor
COMPUTATIONAL MATERIAL
ITEM 6.02- CHANGE OF SERVICER OR Master Servicer/Securities
SECURITIES ADMINISTRATOR Administrator/Depositor/
Servicer/Trustee
Requires disclosure of any removal,
replacement, substitution or addition
of any master servicer, affiliated
servicer, other servicer servicing 10%
or more of pool assets at time of
report, other material servicers or
trustee.
Reg AB disclosure about any new Servicer/Master Servicer/Depositor
servicer or master servicer is also
required.
Reg AB disclosure about any new Trustee
Trustee is also required.
ITEM 6.03- CHANGE IN CREDIT Depositor/Securities Administrator
ENHANCEMENT OR EXTERNAL SUPPORT
Covers termination of any enhancement
in manner other than by its terms, the
addition of an enhancement, or a
material change in the enhancement
provided. Applies to external credit
enhancements as well as derivatives.
Q-3-2
FORM 8-K DISCLOSURE INFORMATION
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------- -----------------
Reg AB disclosure about any new Depositor
enhancement provider is also required.
ITEM 6.04- FAILURE TO MAKE A REQUIRED Securities Administrator
DISTRIBUTION Trustee
ITEM 6.05- SECURITIES ACT UPDATING Depositor
DISCLOSURE
If any material pool characteristic
differs by 5% or more at the time of
issuance of the securities from the
description in the final prospectus,
provide updated Reg AB disclosure
about the actual asset pool.
If there are any new servicers or Depositor
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.
ITEM 7.01- REG FD DISCLOSURE All parties
ITEM 8.01- OTHER EVENTS Depositor
Any event, with respect to which
information is not otherwise called
for in Form 8-K, that the registrant
deems of importance to
certificateholders.
ITEM 9.01- FINANCIAL STATEMENTS AND Responsible party for
EXHIBITS reporting/disclosing the financial
statement or exhibit
Q-3-3
EXHIBIT R
FORM OF SWAP AGREEMENT
R-1
DATE: June 29, 2007
TO: Xxxxx Fargo Bank, National Association, not individually, but
solely as Supplemental Interest Trust Trustee on behalf of the
Supplemental Interest Trust relating to the Xxxxxxx Xxxxx
Alternative Note Asset Trust, Series 2007-OAR3 Mortgage
Pass-Through Certificates
ATTENTION: Client Manager - MANA 2007-OAR3
TELEPHONE: (000) 000-0000
FACSIMILE: (000) 000-0000
FROM: New York Derivative Client Services Group
TELEPHONE: (000) 000-0000
FACSIMILE: (000) 000-0000
SUBJECT: Fixed Income Derivatives Confirmation
REFERENCE NUMBER: HRJEX
The purpose of this letter agreement (this "CONFIRMATION") is to confirm the
terms and conditions of the Swap Transaction entered into on the Trade Date
specified below (the "TRANSACTION") between Xxxxxx Xxxxxxx Capital Services Inc.
("PARTY A") and Xxxxx Fargo Bank, National Association, not individually, but
solely as Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest Trust relating to the Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-OAR3 Mortgage Pass-Through Certificates (the "Supplemental Interest
Trust Trustee") under the Pooling and Servicing Agreement, dated and effective
as of June 1, 2007, among, Xxxxxxx Xxxxx Mortgage Investors, as Depositor, Xxxxx
Fargo Bank, National Association, as Master Servicer and Securities
Administrator, Wilshire Credit Corporation, as a servicer and HSBC Bank USA,
National Association, as Trustee (the "PSA").
The definitions and provisions contained in the 2000 ISDA Definitions (the
"DEFINITIONS"), as published by the International Swaps and Derivatives
Association, Inc., are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern. Terms capitalized but not defined in this Confirmation (including
the Definitions) have the meanings attributed to them in the PSA.
This Confirmation constitutes a "Confirmation" as referred to in, and
supplements, forms part of and is subject to, the ISDA Master Agreement dated as
of June 29, 2007, as amended and supplemented from time to time (the
"AGREEMENT"), between Party A and Party B. All provisions contained in the
Agreement govern this Confirmation except as expressly modified below.
1. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount:.............. With respect to any Calculation Period, the
notional amount set forth for such Calculation
Period in Schedule I attached hereto.
Trade Date:................... June 26, 2007
Effective Date:............... May 25, 2008
Termination Date:............. February 25, 2013, which for the purpose of the
final Fixed Rate Payer Calculation Period is
subject to No Adjustment, and for the purpose
of the final Floating Rate Payer Calculation
Period is subject to adjustment in accordance
with the Following Business Day Convention.
R-2
FIXED AMOUNTS:
Fixed Rate Payer:.......... Xxxxx Fargo Bank, National Association, not
individually, but solely as Supplemental
Interest Trust Trustee on behalf of the
Supplemental Interest Trust relating to the
Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-OAR3 Mortgage Pass-Through
Certificates ("PARTY B").
Fixed Rate Payer Early
Payment Dates:.......... On the day which is one (1) Business Day prior
to each Fixed Rate Payer Period End Date.
Fixed Rate Payer Period End
Dates:.................. The 25th calendar day of each month during the
Term of this Transaction, in each case subject
to No Adjustment.
Fixed Rate:................ 5.50%
Fixed Amount:.............. To be determined in accordance with the
following formula:
Fixed Rate * Notional Amount * Fixed Rate Day
Count Fraction.
Fixed Rate Day Count
Fraction:............... 30/360
FLOATING AMOUNTS:
Floating Rate Payer:....... Party A
Floating Rate Payer Early
Payment Dates:.......... On the day which is one (1) Business Day prior
to each Fixed Rate Payer Period End Date.
Floating Rate Payer Period
End Dates:..............The 25th calendar day of each month during the
Term of this Transaction, in each case subject
to adjustment in accordance with the Following
Business Day Convention.
Floating Rate Option:...... USD-LIBOR-BBA
Floating Amount:........... To be determined in accordance with the
following formula:
Floating Rate * Notional Amount * Floating Rate
Day Count Fraction.
Designated Maturity:....... One month
Floating Rate Day Count
Fraction:............... Actual/360
Reset Dates:............... The first day of each Calculation Period.
Compounding:............... Inapplicable
R-3
Business Days:............. New York
INITIAL EXCHANGE:
Initial Exchange Amount:... With respect to Party A, $309,500. With respect
to Party B, $0.
2. Account Details and Settlement Information:
Payments to Party A:
Citibank, New York
ABA No.: 021 000 089
Account No.: 4072-4601
Account Name: Xxxxxx Xxxxxxx Capital Services Inc.
Payments to Party B:
Xxxxx Fargo Bank ,National Association
ABA No.: 121 000 248
Account No: 0000000000
Acct Name: SAS Clearing
Ref: FFC: 53163401, MANA 0000-XXX0 (xxxx)
3. SUPPLEMENT INTEREST TRUST TRUSTEE CAPACITY. It is expressly understood and
agreed by the parties hereto that insofar as this Confirmation is executed by
Xxxxx Fargo Bank, National Association (i) this Confirmation is executed and
delivered by Xxxxx Fargo Bank, National Association not in its individual
capacity but solely as Supplemental Interest Trust Trustee of the Supplemental
Interest Trust under the PSA in the exercise of the powers and authority
conferred and invested in it as Supplemental Interest Trust Trustee thereunder,
(ii) each of the representations, undertakings and agreements herein made on
behalf of Party B is made and intended not as personal representations of the
Supplemental Interest Trust Trustee but is made and intended for the purpose of
binding only the Trust, and (iii) under no circumstances shall Xxxxx Fargo Bank,
National Association in its individual capacity be personally liable for the
payment of any indebtedness or expenses or be personally liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken under this Confirmation.
R-4
We are very pleased to have entered into this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Party B, acting through its duly authorized signatory, hereby agrees to, accepts
and confirms the terms of the foregoing as of the Trade Date.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not individually, but solely as
Supplemental Interest Trust Trustee on
behalf of the Supplemental Interest
Trust relating to the Xxxxxxx Xxxxx
Alternative Note Asset Trust, Series
2007-OAR3 Mortgage Pass-Through
Certificates
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
R-5
SCHEDULE I
LINE CALCULATION PERIOD NOTIONAL AMOUNT ($)
---- --------------------------------- -------------------
1. Effective Date 06/25/2008 375,350,776
2. 06/25/2008 07/25/2008 367,654,263
3. 07/25/2008 08/25/2008 360,752,683
4. 08/25/2008 09/25/2008 354,343,502
5. 09/25/2008 10/25/2008 348,164,789
6. 10/25/2008 11/25/2008 342,595,447
7. 11/25/2008 12/25/2008 337,527,843
8. 12/25/2008 01/25/2009 332,489,756
9. 01/25/2009 02/25/2009 326,696,816
10. 02/25/2009 03/25/2009 320,359,959
11. 03/25/2009 04/25/2009 313,907,649
12. 04/25/2009 05/25/2009 307,265,004
13. 05/25/2009 06/25/2009 300,765,501
14. 06/25/2009 07/25/2009 294,685,850
15. 07/25/2009 08/25/2009 288,991,980
16. 08/25/2009 09/25/2009 283,773,753
17. 09/25/2009 10/25/2009 278,806,775
18. 10/25/2009 11/25/2009 274,250,629
19. 11/25/2009 12/25/2009 270,125,409
20. 12/25/2009 01/25/2010 266,023,987
21. 01/25/2010 02/25/2010 261,178,155
22. 02/25/2010 03/25/2010 254,642,959
23. 03/25/2010 04/25/2010 246,539,868
24. 04/25/2010 05/25/2010 238,516,331
25. 05/25/2010 06/25/2010 231,278,223
26. 06/25/2010 07/25/2010 225,139,461
27. 07/25/2010 08/25/2010 219,819,677
28. 08/25/2010 09/25/2010 214,968,495
29. 09/25/2010 10/25/2010 210,347,990
30. 10/25/2010 11/25/2010 206,050,072
31. 11/25/2010 12/25/2010 202,029,747
32. 12/25/2010 01/25/2011 198,084,434
33. 01/25/2011 02/25/2011 193,699,793
34. 02/25/2011 03/25/2011 188,805,674
35. 03/25/2011 04/25/2011 183,623,245
36. 04/25/2011 05/25/2011 178,090,308
37. 05/25/2011 06/25/2011 172,581,472
38. 06/25/2011 07/25/2011 165,842,093
39. 07/25/2011 08/25/2011 155,820,424
40. 08/25/2011 09/25/2011 144,099,995
41. 09/25/2011 10/25/2011 129,130,206
42. 10/25/2011 11/25/2011 116,869,562
43. 11/25/2011 12/25/2011 106,661,820
44. 12/25/2011 01/25/2012 97,897,708
45. 01/25/2012 02/25/2012 89,500,158
46. 02/25/2012 03/25/2012 81,193,655
47. 03/25/2012 04/25/2012 73,230,749
48. 04/25/2012 05/25/2012 65,277,825
R-6
49. 05/25/2012 06/25/2012 57,949,776
50. 06/25/2012 07/25/2012 51,708,940
51. 07/25/2012 08/25/2012 46,487,412
52. 08/25/2012 09/25/2012 42,171,119
53. 09/25/2012 10/25/2012 38,425,730
54. 10/25/2012 11/25/2012 35,237,378
55. 11/25/2012 12/25/2012 32,512,668
56. 12/25/2012 01/25/2013 30,080,823
57. 01/25/2013 02/25/2013 27,701,910
58. 02/25/2013 Termination Date 0
R-7
SCHEDULE
TO THE
1992 ISDA MASTER AGREEMENT
DATED AS OF JUNE 29, 2007
BETWEEN
XXXXXX XXXXXXX CAPITAL SERVICES INC.
A DELAWARE CORPORATION
("Party A")
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION
A NATIONAL BANKING ASSOCIATION, NOT INDIVIDUALLY, BUT SOLELY AS SUPPLEMENTAL
INTEREST TRUST
TRUSTEE ON BEHALF OF THE SUPPLEMENTAL INTEREST TRUST RELATING TO THE XXXXXXX
XXXXX
ALTERNATIVE NOTE ASSET TRUST,
SERIES 2007-OAR3 MORTGAGE PASS-THROUGH CERTIFICATES,
("Party B")
PART 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), None Specified
Section 5(a)(vi), None Specified
Section 5(a)(vii), None Specified
Section 5(b)(iv), None Specified
and in relation to Party B for the purpose of:
Section 5(a)(v), None Specified
Section 5(a)(vi), None Specified
Section 5(a)(vii), None Specified
Section 5(b)(iv), None Specified
(b) EVENTS OF DEFAULT. Notwithstanding anything in this Agreement to the
contrary, the following Events of Default shall apply to the specified
party:
PARTY A PARTY B
-------------- --------------
(i) Section 5(a)(i), Failure to Pay or Deliver Applicable Applicable
(ii) Section 5(a)(ii), Breach of Agreement Applicable Not Applicable
(iii) Section 5(a)(iii), Credit Support Default Applicable Applicable
(iv) Section 5(a)(iv), Misrepresentation Applicable Not Applicable
(v) Section 5(a)(v), Default Under Specified Not Applicable Not Applicable
Transaction
(vi) Section 5(a)(vi), Cross Default Applicable Not Applicable
(vii) Section 5(a)(vii), Bankruptcy Applicable Applicable
(viii) Section 5(a)(viii), Merger Without
Assumption Applicable Applicable
R-8
provided, however, that with respect to:
(i) Section 5(a)(i) (Failure to Pay or Deliver), shall be amended
by replacing the word "third" with "first."
(ii) Section 5(a)(iii)(1) (Credit Support Default), as it applies
to Party B only, shall be deleted in its entirety and replaced
with the following: "Failure by Party B to comply with or perform
any agreement or obligation to be complied with or performed by
it in accordance with Paragraph 3(b) of the Credit Support Annex
if such failure is continuing after any applicable grace period
has elapsed."
(iii) Section 5(a)(vi) (Cross Default), "Threshold Amount" means,
with respect to Party A, 3% of its Credit Support Provider's (or
the applicable Relevant Entity's) shareholder's equity (as
detailed in its Credit Support Provider's or the Relevant
Entity's most recent financial statements).
(iv) Section 5(a)(vii) (Bankruptcy), (i) clause (2) and (9) shall
not be applicable to Party B; (ii) clause (4) shall not be
applicable to Party B if the proceeding or petition is instituted
or presented by Party A or any of its Affiliates and is in breach
of Party A's agreement set forth in Part 5(j) of this Schedule;
(iii) the appointment of a trustee or other secured party by
Party B or the Certificateholders for the purpose of holding all
or a substantial portion of the assets of Party B for the benefit
of the Certificateholders or Party A does not qualify as the
appointment of a trustee, custodian or similar official under
clause (6); (iv) a security interest granted by Party B to a
trustee, collateral agent, custodian or other secured party, as
applicable (the "Secured Party"), pursuant to an indenture, trust
agreement, pooling and servicing agreement or other customary
securitization transaction document (the "Security Agreement"),
in property of Party B (the "Securitization Collateral")
supporting a rated securitization transaction (the
"Securitization"), and the rights of the Secured Party in and to
the Securitization Collateral for the benefit of the investors in
the Securitization and/or Party A, is not intended to constitute
and shall not be treated as a secured party taking possession of
the assets of Party B for purposes of clause (7); (v) the words
"seeks or" shall be deleted from clause (6); and (vi) clause (8)
shall not apply to Party B to the extent that clause (8) relates
to clauses of Section 5(a)(vii) that are not applicable to Party
B as a result of the modifications set forth herein.
Notwithstanding the foregoing, for the avoidance of doubt, the
deletion of clause (9) is not intended to render clauses (1)
through (8) inapplicable on the basis that Party B did not
actively contest or oppose any of the acts referred to in such
clauses or, in the case of clause (4), if a proceeding or
petition referred to therein is instituted or presented against
Party B, on the basis that Party B consented to or acquiesced in
a judgment of bankruptcy or insolvency or the entry of an order
for relief or the making of an order for its winding up or
liquidation as a result of such proceeding or petition.
R-9
(c) TERMINATION EVENTS. Notwithstanding anything in this Agreement to the
contrary, the following Termination Events shall apply to the specified
party:
PARTY A PARTY B
-------------- --------------
(i) Section 5(b)(i), Illegality Applicable Applicable
(ii) Section 5(b)(ii), Tax Event Applicable Applicable
(iii) Section 5(b)(iii), Tax Event Upon Merger Applicable Applicable
(iv) Section 5(b)(iv), Credit Event Upon Merger Not Applicable Not Applicable
(v) Section 5(b)(v), Additional Termination
Event Applicable (as Applicable (as
set forth in set forth in
Part 1(h) Part 1(h)
below) below)
provided, however, that with respect to Section 5(b)(iii), Party A shall
not be entitled to designate an Early Termination Date by reason of a Tax
Event Upon Merger in respect of which it is the Affected Party.
(d) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will not
apply to Party A and will not apply to Party B.
(e) The "TRANSFER TO AVOID TERMINATION EVENT" provisions of 6(b)(ii) will
apply, provided that the words "or if a Tax Event Upon Merger occurs and
the Burdened Party is the Affected Party," shall be deleted.
(f) PAYMENTS ON EARLY TERMINATION.
(i) For the purpose of Section 6(e), "Market Quotation" and "Second
Method" will apply.
(ii) Where an Early Termination Date is designated as a result of an
Event of Default with respect to which Party A is the Defaulting Party
or a Termination Event under Section 5(b)(iii), Section 5(b)(iv) or
Section 5(b)(v) with respect to which Party A is the sole Affected
Party, paragraphs (1) through (8) below shall apply:
(1) The definition of "Market Quotation" shall be deleted in its
entirety and replaced with the following:
"`MARKET QUOTATION' means, with respect to one or more
Terminated Transactions, a Firm Offer which is (1) made by
an Eligible Replacement, (2) for an amount, if any, that
would be paid to Party B (expressed as a negative number) or
by Party B (expressed as a positive number) in consideration
of an agreement between Party B and an Eligible Replacement
to enter into a transaction (the "REPLACEMENT TRANSACTION")
that would have the effect of preserving for such party the
economic equivalent of any payment or delivery (whether the
underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition
precedent) by the parties under Section 2(a)(i) in respect
of such Terminated Transactions or group of Terminated
Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required
after that date, (3) made on the basis that Unpaid Amounts
in respect of the Terminated Transaction or group of
Transactions are to be excluded but, without limitation, any
payment or delivery that would, but for the relevant Early
Termination Date, have been required
R-10
(assuming satisfaction of each applicable condition
precedent) after that Early Termination Date is to be
included and (4) made in respect of a Replacement
Transaction with terms substantially the same as those of
this Agreement as determined by Party B (save for the
exclusion of provisions relating to Transactions that are
not Terminated Transactions). Party A and Party B will
request each Eligible Replacement to provide a Firm Offer to
the extent reasonably practicable as of the same day and
time (without regard to different time zones). If no Firm
Offers are provided, it will be deemed that the Market
Quotation in respect of such Terminated Transaction or group
of Terminated Transactions cannot be determined.
(2) The definition of "Settlement Amount" shall be deleted in its
entirety and replaced with the following:
"Settlement Amount" means, with respect to any Early
Termination Date, an amount (as determined by Party B in
accordance with clauses (a) and (b) below; provided,
however, if Party B fails to make such determination
promptly, Party A shall have the right to make such
determination) equal to:
(a) the Termination Currency Equivalent of the amount
(whether positive or negative) for each Terminated
Transaction or group of Terminated Transactions for which a
Market Quotation is determined. If more than one Market
Quotation is capable of becoming legally binding upon
acceptance, Party B shall accept the Market Quotation that
constitutes (1) the highest Market Quotation in the case of
a payment by an Eligible Replacement to Party B or (2) the
lowest Market Quotation in the case of a payment by Party B
to an Eligible Replacement; provided, however, if Party B
fails to make such determination promptly, Party A shall
have the right to make such determination. If only one
Market Quotation is provided, Party B shall accept the
single Market Quotation. Party B shall be obligated to
accept the Market Quotation immediately upon determination
so as to become legally binding; or
(b) Party B's Loss (whether positive or negative and
without reference to any Unpaid Amounts) for each Terminated
Transaction or group of Terminated Transactions for which a
Market Quotation cannot be determined.
(3) For the purpose of paragraph (4) of the definition of Market
Quotation, Party B shall make reasonable efforts to determine,
acting in a commercially reasonable manner, whether a Firm Offer
is made in respect of a Replacement Transaction with terms
substantially the same as those of this Agreement (save for the
exclusion of provisions relating to Transactions that are not
Terminated Transactions); provided, however, if Party B fails to
make such determination promptly, Party A shall have the right to
make such determination.
(4) Party B undertakes to use its reasonable efforts to obtain at
least one Market Quotation on or before the later of (a) the
Early Termination Date or (b) 10 Business Days following the
designation of the Early Termination Date (the "LATEST SETTLEMENT
AMOUNT DETERMINATION DAY").
(5) Party B will be deemed to have discharged its obligations
under (4) above if it requests Party A to obtain Market
Quotations, where such
R-11
request is made in writing within two Business Days after the day
on which the Early Termination Date is designated.
(6) If Party B requests Party A in writing to obtain Market
Quotations, Party A shall use its reasonable efforts to do so
before the Latest Settlement Amount Determination Day.
(7) Party A shall have the right to obtain Market Quotations,
without prior request by Party B, before the Latest Settlement
Amount Determination Day.
(8) If the Settlement Amount is a negative number, Section
6(e)(i)(3) of this Agreement shall be deleted in its entirety and
replaced with the following:
"SECOND METHOD AND MARKET QUOTATION. If Second Method and
Market Quotation apply, (1) Party B shall pay to Party A an
amount equal to the absolute value of the Settlement Amount
in respect of the Terminated Transactions, (2) Party B shall
pay to Party A the Termination Currency Equivalent of the
Unpaid Amounts owing to Party A and (3) Party A shall pay to
Party B the Termination Currency Equivalent of the Unpaid
Amounts owing to Party B, provided that, (i) the amounts
payable under (2) and (3) shall be subject to netting in
accordance with Section 2(c) of this Agreement and (ii)
notwithstanding any other provision of this Agreement, any
amount payable by Party A under (3) due to a failure by
Party A to make, when due, any payment under this Agreement,
shall not be netted against any amount payable by Party B
under (1)."
(g) "TERMINATION CURRENCY" means U.S. Dollars.
(h) ADDITIONAL TERMINATION EVENT.
(A) The following Additional Termination Event will apply to Party A,
with Party A as the sole Affected Party and all Transaction as
Affected Transactions.
(i) Party A fails to comply with the Rating Agency Downgrade
provisions as set forth in Part 5(f) below; or
(ii) A Firm Offer is accepted by Party B pursuant to Part
5(f)(ii)(2)(B) following a Xxxxx'x Second Tier Downgrade Event.
(B) The following Additional Termination Events will apply to Party B,
with Party B as the sole Affected Party and all Transaction as
Affected Transactions.
(i) Upon any amendment, supplement, modification or waiver of any
provision of the PSA (as defined below) without the consent of
Party A that adversely affects the rights or interests of Party
A.
(ii) The termination of the Trust Fund through an Optional
Termination pursuant to Section 10.01 of the PSA.
R-12
(iii) Upon the irrevocable direction to dissolve or otherwise
terminate the Trust following which all assets of the Trust will
be liquidated and the proceeds of such liquidation distributed to
the Certificateholders.
PART 2. TAX REPRESENTATIONS.
PARTY A AND PARTY B PAYER TAX REPRESENTATIONS.
(i) For the purpose of Section 3(e), each of Party A and Party B makes
the following representation:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii), or 6(e) of this Agreement) to be made by it to the other
party under this Agreement. In making this representation, it may rely
on (i) the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement, (ii) the satisfaction of
the agreement contained in Section 4(a)(i) or 4(a)(iii) of this
Agreement, and the accuracy and effectiveness of any document provided
by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement, and (iii) the satisfaction of the agreement of the other
party contained in Section 4(d) of this Agreement, provided that it
shall not be a breach of this representation where reliance is placed
on clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal
or commercial position.
(ii) For the purposes of Section 3(f), Party A makes the following
representation:
Party A is a U.S. corporation organized under the laws of Delaware.
PART 3. AGREEMENT TO DELIVER DOCUMENTS.
For the purpose of Sections 4(a)(i) and (ii), each party agrees to deliver the
following documents, as applicable:
(a) TAX FORMS, DOCUMENTS OR CERTIFICATES TO BE DELIVERED ARE:
PARTY
REQUIRED
TO DELIVER
DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
---------- -------------------------------- --------------------------------
Party A A correct, complete and duly (i) Upon entering into this
executed IRS Form W-9. Agreement, (ii) promptly
upon reasonable demand by
Party B, and (iii) promptly
upon learning that any such
Form previously provided by
Party A has become obsolete
or incorrect.
R-13
PARTY
REQUIRED
TO DELIVER
DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
---------- -------------------------------- --------------------------------
Party B (i) A correct, complete and (a) With respect to clause (i)
duly executed IRS Form W-9 of the adjacent column, the
(or any successor thereto) Supplemental Interest Trust
that eliminates U.S. federal Trustee shall apply for the
withholding and backup employer identification
withholding tax on payments number of the Supplemental
under this Agreement, (ii) Interest Trust promptly upon
if requested by Party A, a entering into this Agreement
correct, complete and duly and deliver the related
executed Form W-8IMY, and correct, complete and duly
(iii) a complete and executed IRS Form W-9
executed IRS Form W-9, promptly upon receipt, and
W-8BEN, W-8ECI, or W-8IMY in any event, no later than
(with attachments) (as the first Payment Date of
appropriate) from each this Transaction; (b) in the
Certificateholder that is case of a W-8ECI, W-8IMY,
not an "exempt recipient" as and W-8BEN that does not
that term is defined in include a U.S. taxpayer
Treasury regulations section identification number in
1.6049-4(c)(ii), that line 6, before December 31
eliminates U.S. federal of each third succeeding
withholding and backup calendar year, (c) promptly
withholding tax on payments upon reasonable demand by
under this Agreement. Party A, and (d) promptly
upon actual knowledge that
any such Form previously
provided by Party B has
become obsolete or
incorrect.
(b) Other documents to be delivered are:-
PARTY
REQUIRED COVERED BY
TO DELIVER DATE BY WHICH SECTION 3(D)
DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION
---------- --------------------------- -------------------- --------------
Party A Either (1) a signature The earlier of the Yes
and booklet containing fifth Business Day
Party B secretary's certificate and after the Trade Date
resolutions ("authorizing of the first
resolutions") authorizing Transaction or upon
the party to enter into execution of this
derivatives transactions of Agreement and as
the type contemplated by deemed necessary for
the parties or (2) a any further
secretary's certificate, documentation.
authorizing resolutions and
incumbency certificate, in
either case, for such party
and any Credit Support
Provider of such party
reasonably satisfactory in
form and substance to the
other party.
R-14
PARTY
REQUIRED COVERED BY
TO DELIVER DATE BY WHICH SECTION 3(D)
DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION
---------- --------------------------- -------------------- --------------
Party B An executed copy of the Upon execution of Yes
Pooling and Servicing this Agreement.
Agreement ("PSA"), dated as
of June 1, 2007, among,
inter alia, Merrill Lynch
Mortgage Investors, Inc.,
as Depositor, Xxxxx Fargo
Bank, National Association,
as Master Servicer and
Securities Administrator
and HSBC Bank USA, National
Association, as Trustee.
Party A A duly executed copy of the As soon as No
and Credit Support Document practicable after
Party B specified in Part 4 of this the execution of
Schedule. this Agreement.
Party A An opinion of counsel As soon as No
and reasonably satisfactory in practicable after
Party B form and substance to the the execution of
other party. this Agreement.
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):-
(i) Address for notices or communications to Party A:-
XXXXXX XXXXXXX CAPITAL SERVICES INC.
Transaction Management Group
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: CHIEF LEGAL OFFICER
Fax No: 000 000 000 0000
(ii) Address for notices or communications to Party B:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - MANA 2007-OAR3
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
(b) NOTICES. Section 12(a) is amended by adding in the third line thereof
after the phrase "messaging system" and before the ")" the words, ";
provided, however, any such notice or other communication may be given by
facsimile transmission if telex is unavailable, no telex number is supplied
to the party providing notice, or if answer back confirmation is not
received from the party to whom the telex is sent."
R-15
(c) PROCESS AGENT. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not Applicable.
Party B appoints as its Process Agent: Not Applicable.
(d) OFFICES. The provisions of Section 10(a) will not apply to Party A and
to Party B.
(e) MULTIBRANCH PARTY. For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(f) "Calculation Agent" means Party A.
(g) "Credit Support Document" means (a) with respect to Party A, (1) the
Credit Support Annex between Party A and Party B dated as of the date
hereof (the "CREDIT SUPPORT ANNEX") and (2) the guarantee of Xxxxxx Xxxxxxx
and (b) with respect to Party B, the Credit Support Annex.
(h) CREDIT SUPPORT PROVIDER means in relation to Party A: Xxxxxx Xxxxxxx, a
Delaware corporation.
CREDIT SUPPORT PROVIDER means in relation to Party B: None
(i) GOVERNING LAW; JURISDICTION. This Agreement, each Credit Support
Document and each Confirmation will be governed by and construed in
accordance with the laws of the State of New York without regard to
conflict of law provisions thereof other than New York General Obligations
Law Sections 5-1401 and 5-1402. Section 13(b) is amended by: (1) deleting
"non-" from the second line of clause (i); and (2) deleting the final
paragraph.
(j) WAIVER OF JURY TRIAL. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in
respect of any Proceedings relating to this Agreement or any Credit Support
Document.
(k) NETTING OF PAYMENTS. Clause (ii) of Section 2(c) will apply to any
amounts payable with respect to Transactions from the date of this
Agreement.
(l) "Affiliate". Party A and Party B shall be deemed not to have any
Affiliates for purposes of this Agreement, including for purposes of
Section 6(b)(ii). For the avoidance of doubt, with respect to Party A, such
definition shall be understood to exclude Xxxxxx Xxxxxxx Derivative
Products Inc.
(m) ADDITIONAL DEFINITIONS. All capitalized terms used but not otherwise
defined in this Agreement shall have the meanings given thereto in the PSA.
R-16
PART 5. OTHER PROVISIONS
(a) Additional Representations.
(i) The introductory clause of Section 3 of this Agreement is hereby
amended to read in its entirety as follows:
"Each party represents to the other party (which representations
will be deemed to be repeated by each party on each date on which
a Transaction is entered into and, in the case of the
representations in Section 3(f) and Section 3(g)(4), at all times
until the termination of this Agreement) that:--"
(ii) Section 3 of this Agreement is hereby amended by adding at the
end thereof the following subsection (g):
"(g) Relationship Between Parties.
(1) NONRELIANCE. It is not relying on any statement or
representation of the other party regarding a Transaction
(whether written or oral), other than the representations
expressly made in this Agreement or the Confirmation in respect
of that Transaction.
(2) EVALUATION AND UNDERSTANDING.
(i) NON-RELIANCE. In the case of Party A, it is acting
for its own account, and in the case of Party B, the
Supplemental Interest Trust Trustee is acting on behalf of
the Supplemental Interest Trust. Party A has made its own
independent decisions to enter into each Transaction under
this Agreement and as to whether such Transaction is
appropriate or proper for it based upon its own judgment and
upon advice from such advisers as it has deemed necessary
and, with respect to Party B, it has entered into each
Transaction under this Agreement as directed under the PSA.
It is not relying on any communication (written or oral) of
the other party as investment advice or as a recommendation
to enter into such Transaction; it being understood that
information and explanations related to the terms and
conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into that
Transaction. No communication (written or oral) received
from the other party shall be deemed to be an assurance or
guarantee as to the expected results of each such
Transaction.
(ii) ASSESSMENT AND UNDERSTANDING. It is capable of
assessing the merits of and understanding (on its own behalf
or through independent professional advice), and understands
and accepts, the terms, conditions and risks of that
Transaction. It is also capable of assuming, and assumes,
the risks of that Transaction.
(iii) STATUS OF PARTIES. The other party is not acting
as a fiduciary for or an adviser to it in respect of that
Transaction.
(3) PURPOSE. It is an "eligible swap participant" as such
term is defined in Section 35.1(b)(2) of the regulations (17
C.F.R 35) promulgated under, and an "eligible contract
participant" as defined in Section 1a(12) of, the Commodity
Exchange Act, as amended, and it is entering into the Transaction
for the purposes of managing its borrowings or investments,
hedging its underlying assets or liabilities or in connection
with a line of business.
R-17
(4) ERISA REPRESENTATION.
(i) Party A represents and warrants at all times
hereunder that it is not a pension plan or employee benefit
plan and that it is not using assets of any such plan or
assets deemed to be assets of such a plan in connection with
any Transaction under this Agreement, and
(ii) Party B represents and warrants at all times
hereunder that (x) it is not a pension plan or employee
benefit plan, and (y) (1) that it is not acting on behalf of
any such plan or using assets of any such plan or assets
deemed to be assets of any such plan in connection with any
Transaction under this Agreement or (2) any pension plan or
employee benefits plan subject to 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"), or any person who is acting on behalf
of such a plan, or using assets of such plan or assets
deemed to be "plan assets" of such plan for purposes of
ERISA or the Code, who purchases a certificate issued by the
Trust while this Agreement is in existence (i) shall
represent or shall be deemed to represent that the purchase
and holding of such certificate is in reliance on at least
one of the Prohibited Transaction Class Exemptions of 00-00,
00-0, 00-00, 00-00 xx 00-00 xx (xx) shall provide an opinion
of counsel which states that such purchase and holding is
permissible under applicable law and will not result in a
prohibited transaction under ERISA or Section 4975 of the
Code."
(b) SET-OFF. Subject to Section 2(c), Paragraphs 8(a) and 8(b) of the Credit
Support Annex and Part 1(f)(ii)(8) hereof, notwithstanding any other
provision of this Agreement or any other existing or future agreement, each
party irrevocably waives any and all rights it may have to set off, net,
recoup or otherwise withhold, suspend or condition payment or performance
of any obligation between it and the other party hereunder against any
obligation between it and the other party under any other agreements.
Section 6(e) is hereby amended by the deletion of the following sentence at
the end of the first paragraph thereof: "The amount, if any, payable in
respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off."
(c) CONFIRMATIONS. Party A will deliver to Party B a Confirmation relating to
each Transaction.
(d) FORM OF AGREEMENT. The parties hereby agree that the text of the body of
this Agreement is intended to be the printed form of 1992 ISDA Master Agreement
(Multicurrency--Cross Border) as published and copyrighted by the International
Swaps and Derivatives Association, Inc.
(e) TRANSFER, TERMINATION, AMENDMENT AND ASSIGNMENT.
(i) This Agreement may not be amended unless prior written notice is
given to Xxxxx'x and Rating Agency Confirmation from S&P is obtained.
(ii) Notwithstanding any other provision of this Agreement, no Early
Termination Date shall be effectively designated by Party B (other
than an Early Termination Date designated under Part 5(f)(ii)(3))
unless Xxxxx'x has been given prior written notice of such
designation.
R-18
(iii) Party B may, with the prior written consent of Party A and
subject prior written notice to Xxxxx'x and Rating Agency
Confirmation from S&P, assign, novate or transfer its rights and
obligations under the Agreement to a third party. Notwithstanding
Section 7 of this Agreement, Party A may, at its own discretion
and at its own expense, subject to giving reasonable notice of
transfer to Xxxxx'x and subject to Rating Agency Confirmation
with respect to S&P, assign, novate or transfer its rights and
obligations under this Agreement (including any Transactions
hereunder) to any third party including, without limitation,
another of Party A's offices, branches or affiliates (the
"Transferee"), provided that:
(1) such third party agrees to be bound by, inter alia,
the payment, transfer and collateral terms of this Agreement
(including any Transactions hereunder) and substantially all
other terms as the party which it replaces, as determined by
Party B;
(2) such third party is an Eligible Replacement;
(3) a Termination Event or an Event of Default does not
occur under this Agreement as a result of such transfer;
(4) if the Transferee is domiciled in a different
jurisdiction from both Party A and Party B, the rating of
the Certificates assigned by S&P are not adversely affected;
(5) as of the date of the transfer the Transferee will
not, as a result of such transfer, be required to withhold
or deduct on account of tax under this Agreement; and
(6) as of the date of such transfer, neither the
Transferee nor Party B will be required to withhold or
deduct any increased amount on account of any Taxes under
this Agreement as a result of such transfer, unless, as of
the date of such transfer, (x) Party B is entitled to
additional amounts under Section 2(d)(i)(4) on account of
any such Taxes required to be deducted or withheld by the
Transferee and (y) Party B is not required to pay Transferee
additional amounts under Section 2(d)(i)(4) on account of
any such Taxes required to be deducted or withheld by Party
B.
Following such transfer, all references herein to Party A
shall be deemed to be references to the Transferee.
(f) RATING AGENCY DOWNGRADE.
(i) MOODY'S FIRST TIER DOWNGRADE. In the event the Relevant
Entity is downgraded below the Moody's First Tier Required Swap
Counterparty Ratings (a "MOODY'S FIRST TIER DOWNGRADE EVENT")
then, within 30 Business Days after the occurrence of such
Moody's First Tier Downgrade Event, Party A shall, at its option
and at its own expense, either:
(A) cause an Eligible Replacement to replace Party A as
party to this Agreement; provided that if such Eligible
Replacement or its Credit Support Provider, as applicable,
is rated below the Moody's First Tier Required Swap
Counterparty Rating, such Eligible Replacement shall
immediately Transfer Eligible Credit Support to Party B
pursuant to the Credit Support Annex;
R-19
(B) obtain an Eligible Guarantee in respect of Party A's
obligations under this Agreement that is provided by an
entity with the Moody's First Tier Required Swap
Counterparty Rating; or
(C) Transfer Eligible Credit Support to Party B pursuant to
the Credit Support Annex.
(ii) MOODY'S SECOND TIER DOWNGRADE. (1) In the event that no
Relevant Entity has the Moody's Second Tier Required Swap
Counterparty Rating (a "Moody's Second Tier Downgrade Event")
then, Party A shall, at its option and at its own expense, use
commercially reasonable efforts to as soon as reasonably
practicable either:
(A) cause an Eligible Replacement to replace Party A as
party to this Agreement; or
(B) obtain an Eligible Guarantee in respect of Party A's
obligations under this Agreement that is provided by an
entity with the Moody's Second Tier Required Swap
Counterparty Rating.
(2) If no Eligible Replacement or Eligible Guarantee has
been effected in accordance with Part 5(f)(ii)(1)(A) or (B)
above within 30 Business Days of such Moody's Second Tier
Downgrade Event then:
(A) Party A shall Transfer Eligible Credit Support to Party
B pursuant to the Credit Support Annex until such
replacement or Eligible Guarantee takes effect or, if
sooner, no Moody's Second Tier Downgrade Event is occurring;
and
(B) without prejudice to Party A's right to continue to seek
an Eligible Replacement or an Eligible Guarantee pursuant to
Part 5(f)(ii)(1)(A) and (B), Party B shall also have the
right (but not the obligation) on any Business Day
thereafter to obtain Firm Offers (such day a "FIRM OFFER
SOLICITATION DATE") by giving Party A written notice of its
intention to seek Firm Offers no later than 12:00 p.m., New
York time, on the Business Day prior to the Firm Offer
Solicitation Date. Such notice shall indicate the day and
time as of which each Eligible Replacement will be requested
to provide its Firm Offer; provided that Eligible
Replacements shall not provide Firm Offers prior to 12:00
p.m. New York time, on the Firm Offer Solicitation Date.
Party B shall undertake to use reasonable efforts to seek at
least 5 Firm Offers and Party B shall request each entity
providing a Firm Offer to do so to the extent reasonably
practicable as of the same day and time (without regard to
different time zones). If more than one Firm Offer remains
capable of becoming legally binding upon acceptance, Party B
shall accept the Firm Offer that constitutes (1) the highest
Firm Offer in the case of a payment by an Eligible
Replacement to Party B or (2) the lowest Firm Offer in the
case of a payment by Party B to
R-20
an Eligible Replacement; provided, however, if Party B fails
to make such determination promptly, Party A shall have the
right to make such determination. If only one Firm Offer is
provided, Party B shall accept the single Firm Offer. Party
B shall be obligated to accept the Firm Offer upon
determination; provided however, prior to accepting such
Firm Offer, Party B shall (1) on a day that is a Business
Day, provide Party A with at least 24 hours prior written
notice of its intent to accept such Firm Offer (which
acceptance, in all cases, shall be on a Business Day) and
(2) confirm that Party A has not identified an Eligible
Replacement. If at anytime prior to Party B's acceptance of
a Firm Offer, Party A has identified an Eligible Replacement
then, in its sole discretion, Party A may transfer its
rights and obligations under this Agreement to such Eligible
Replacement and an Early Termination Date will not occur. If
a Firm Offer is accepted by Party B, then, notwithstanding
Section 6 of the ISDA Master Agreement, an Early Termination
Date in respect of all outstanding Transactions will occur
immediately upon such acceptance by Party B and the
Settlement Amount will equal the Firm Offer so accepted by
Party B.
(3) Notwithstanding Part 5(f)(ii)(1) and (2) above, an
Additional Termination Event under this Part 5(f)(ii) shall
only occur with Party A as the sole Affected Party if:
(A) a Moody's Second Tier Downgrade Event has occurred and
has been continuing for 30 or more Business Days; and
(B) at least one Eligible Replacement has made a Firm Offer
in accordance with Part 5(f)(ii)(2)(B) above which remains
capable of becoming legally binding upon acceptance by the
offeree.
(iii) S&P FIRST TIER DOWNGRADE. (1) In the event the Relevant
Entity that is a Financial Institution is downgraded below the
S&P First Tier Required Swap Counterparty Rating (an "S&P FIRST
TIER DOWNGRADE EVENT") then Party A shall, at its option and at
its own expense, either:
(A) subject to Rating Agency Confirmation, within 60
calendar days after the occurrence of such S&P First Tier
Downgrade Event, cause an Eligible Replacement to replace
Party A as party to this Agreement; provided that if such
Eligible Replacement or its Credit Support Provider, as
applicable, is a Financial Institution and is rated below
the S&P First Tier Required Swap Counterparty Rating, such
Eligible Replacement shall immediately Transfer Eligible
Credit Support to Party B pursuant to the Credit Support
Annex;
(B) subject to Rating Agency Confirmation, within 60
calendar days after the occurrence of such S&P First Tier
Downgrade Event, obtain an Eligible Guarantee in respect of
Party A's obligations under this
R-21
Agreement that is provided by an entity with the S&P First
Tier Required Swap Counterparty Rating;
(C) within 10 Business Days after the occurrence of such S&P
First Tier Downgrade Event, transfer Eligible Credit Support
to Party B pursuant to the Credit Support Annex; or
(D) subject to Rating Agency Confirmation, take other steps,
if any, to enable Party B to remedy a downgrade by S&P below
the S&P First Tier Required Swap Counterparty Rating.
(2) Pending compliance with Part 5(f)(iii)(1), Party A shall
Transfer Eligible Credit Support to Party B pursuant to the
Credit Support Annex within 10 Business Days after an S&P
First Tier Downgrade Event.
For the avoidance of doubt, this Part 5(f)(iii) shall only be
applicable to Financial Institutions.
(iv) S&P SECOND TIER DOWNGRADE. (1) In the event that no Relevant
Entity has the S&P Second Tier Required Swap Counterparty Rating
(an "S&P SECOND TIER DOWNGRADE EVENT") then Party A shall, at its
option and at its own expense, use commercially reasonable
efforts to either:
(A) subject to Rating Agency Confirmation, within 60
calendar days after such S&P Second Tier Downgrade Event,
cause an Eligible Replacement to replace Party A as party to
this Agreement; provided that if such Eligible Replacement
or its Credit Support Provider, as applicable, is a
Financial Institution and is rated below the S&P First Tier
Required Swap Counterparty Rating, such Eligible Replacement
shall immediately Transfer Eligible Credit Support to Party
B pursuant to the Credit Support Annex; or
(B) subject to Rating Agency Confirmation, within 60
calendar days after such S&P Second Tier Downgrade Event,
obtain an Eligible Guarantee in respect of Party A's
obligations under this Agreement that is provided by an
entity with the S&P First Tier Required Swap Counterparty
Rating or the S&P Second Tier Required Swap Counterparty
Rating; provided that if such Eligible Guarantor is a
Financial Institution and is rated below the S&P First Tier
Required Swap Counterparty Rating, Party A shall immediately
Transfer Eligible Credit Support to Party B pursuant to the
Credit Support Annex;
(2) Pending compliance with Part 5(f)(iv)(1) Party A shall
Transfer Eligible Credit Support to Party B pursuant to the
Credit Support Annex within 10 Business Days after an S&P
Second Tier Downgrade Event.
(v) Failure to act in accordance with this Part 5(f), including
any failure by Party A to comply with or perform any obligation
to be complied with or
R-22
performed by Party A under the Credit Support Annex, shall
constitute an Additional Termination Event with Party A as the
sole Affected Party; provided that, failure by Party A to
Transfer Eligible Credit Support to Party B in accordance with
Part 5(f)(ii)(2) above shall constitute an Event of Default
under Section 5(a)(iii)("Credit Support Default") if such
failure is not remedied on or before the third Business Day
after notice of such failure is given to Party A.
(vi) For purposes of this Part 5(f), but subject to Part
5(f)(ii)(3), Party A shall be responsible for (1) posting
collateral in accordance with such Credit Support Annex at its
own cost; and (2) any cost incurred by it in complying with its
obligations.
(g) RATING AGENCY DOWNGRADE DEFINITIONS.
(i) For purposes of this Agreement,
"ELIGIBLE GUARANTEE" means an unconditional and irrevocable
guarantee, letter of credit or other arrangement that is
provided by a party as principal obligor rather than surety
and is directly enforceable by Party B.
"ELIGIBLE REPLACEMENT" means an entity (1) with the Moody's
First Tier Required Swap Counterparty Ratings and/or the
Moody's Second Tier Required Swap Counterparty Ratings or
whose present and future obligations owing to Party B are
supported pursuant to an Eligible Guarantee provided by a
party with the Moody's First Tier Required Swap Counterparty
Ratings and/or the Moody's Second Tier Required Swap
Counterparty Ratings, and (2) with the S&P First Tier
Required Swap Counterparty Ratings and/or the S&P Second
Tier Required Swap Counterparty Ratings or whose present and
future obligations owing to Party B are supported pursuant
to an Eligible Guarantee provided by a party with the S&P
First Tier Required Swap Counterparty Ratings and/or the S&P
Second Tier Required Swap Counterparty Ratings; provided
that no entity shall be an Eligible Replacement unless (A) a
legal opinion confirms that none of such Eligible
Replacement's payments to Party B under this Agreement will
be subject to deduction or withholding for or on account of
any Tax or (B) notwithstanding the definition of
"Indemnifiable Tax" in Section 14 of this Agreement, all
Taxes in relation to payments by such Eligible Replacement
shall be Indemnifiable Taxes unless such Taxes (x) are
assessed directly against Party B and not by deduction or
withholding by such Eligible Replacement or (y) arise as a
result of a Change in Tax Law (in which case such Tax shall
be an Indemnifiable Tax only if such Tax satisfies the
definition of Indemnifiable Tax provided in Section 14).
"Financial Institution" MEANS (I) A BANK, BROKER/DEALER,
INSURANCE COMPANY, STRUCTURED INVESTMENT COMPANY OR
DERIVATIVE PRODUCT COMPANY OR A SUBSIDIARY OF ANY SUCH
ENTITY, (II) PARTY A OR ANY OF ITS AFFILIATES, IN EACH CASE
WITH ITS OBLIGATIONS GUARANTEED BY XXXXXX XXXXXXX OR (III)
ANY RATED AFFILIATE OF PARTY A.
"Firm Offer" means an offer which, when made, was capable of
becoming legally binding upon acceptance.
"Moody's" means Xxxxx'x Investor Services, Inc. and any
successor to its rating business.
"Moody's First Tier Required Swap Counterparty Rating" means
(i) if such counterparty or entity has only Long-Term Rating
by Moody's, a Long-Term Rating of at least "A1"
R-23
by Moody's or (ii) if such counterparty or entity has both a
Long-Term Rating and a Short-Term Rating by Moody's, a
Long-Term Rating of at least "A2" by Moody's and a
Short-Term Rating of at least "P-1" by Moody's.
"Moody's Second Tier Required Swap Counterparty Rating"
means (i) if such counterparty or entity has only a
Long-Term Rating by Moody's, a Long-Term Rating of at least
"A3" by Moody's or (ii) if such counterparty or entity has
both a Long-Term Rating and a Short-Term Rating by Moody's,
a Long-Term Rating of at least "A3" by Moody's and a
Short-Term Rating of at least "P-2" by Moody's.
"Rating Agencies" means Moody's and S&P.
"RATING AGENCY Confirmation" means, with respect to any
particular proposed act or omission to act hereunder, that
the party acting or failing to act must consult with S&P and
receive from S&P a prior written confirmation that the
proposed action or inaction would not cause a downgrade or
withdrawal of the then current rating of the Certificates;
provided that S&P is then providing a rating of the
Certificates.
"RELEVANT ENTITY" means Party A, Party A's Credit Support
Provider and any principal obligor under an Eligible
Guarantee in respect of Party A's obligations under this
Agreement.
"S&P" means Standard and Poor's Ratings Services, a division
of the XxXxxx-Xxxx Companies, Inc. and any successor to its
rating business.
"S&P FIRST TIER REQUIRED SWAP COUNTERPARTY RATING" means, if
such counterparty or entity is a Financial Institution, (i)
a Short-Term Rating of at least "A-1" by S&P or (ii) if such
counterparty or entity does not have a Short-Term Rating by
S&P, a Long-Term Rating of at least "A+" by S&P. For the
avoidance of doubt, the S&P First Tier Required Swap
Counterparty Rating shall not be applicable to entities
other than Financial Institutions.
"S&P SECOND TIER REQUIRED SWAP COUNTERPARTY RATING" means
(A) if such counterparty or entity is a Financial
Institution, (i) a Short-Term Rating of at least "A-2" by
S&P or (ii) if such counterparty or entity does not have a
Short-Term Rating from S&P, a Long-Term Rating of at least
"BBB+" by S&P or (B) if such counterparty or entity is not a
Financial Institution, (i) a Short-Term Rating of at least
"A-1" by S&P or (ii) if such counterparty or entity does not
have a Short-Term Rating from S&P, a Long-Term Rating of at
least "A+" by S&P.
(h) SEVERABILITY. If any term, provision, covenant, or condition of
this Agreement, or the application thereof to any party or
circumstance, shall be held to be invalid or unenforceable (in whole
or in part) for any reason, the remaining terms, provisions,
covenants, and conditions hereof shall continue in full force and
effect as if this Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement as so
modified continues to express, without material change, the original
intentions of the parties as to the subject matter of this Agreement
and the deletion of such portion of this Agreement will not
substantially impair the respective benefits or expectations of the
parties; provided, however, that nothing in this provision shall
adversely affect the rights of each party under this Agreement; and
provided further that this severability provision shall not be
applicable if any provision of Section 1, 2, 5, 6, or 13 (or any
definition or provision in Section 14 to the extent it relates to, or
is used in or connection with any such Section) shall be so held to be
invalid or unenforceable. The parties shall endeavor to engage in good
faith negotiations to replace any invalid or
R-24
unenforceable term, provision, covenant or condition with a valid or
enforceable term, provision, covenant or condition, the economic
effect of which comes as close as possible to that of the invalid or
unenforceable term, provision, covenant or condition.
(i) CONSENT TO RECORDING. Each party hereto consents to the monitoring
or recording, at any time and from time to time, by the other party of
any and all communications between trading and marketing personnel of
the parties, waives any further notice of such monitoring or
recording, and agrees to notify its officers and employees of such
monitoring or recording.
(j) PROCEEDINGS. Party A shall not institute against or cause any
other person to institute against, or join any other person in
instituting against, the Supplemental Interest Trust or Xxxxx Fargo
Bank, National Association, not individually, but solely as
Supplemental Interest Trust Trustee, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law for a
period of one year and one day (or, if longer, the applicable
preference period) following payment in full of the Certificates;
provided, however, that this shall not restrict or prohibit Party A
from joining in any bankruptcy, reorganization, arrangement,
insolvency, moratorium or liquidation proceedings or other analogous
proceedings under applicable laws, which has not been instituted in
contravention of Party A's agreement in the sentence preceding this
proviso. This Part 5(j) shall survive termination of this Agreement.
(k) REGULATION AB. Upon request by the Depositor, Party A may, at its
option, but is not required to, (A) (a) provide the financial
information required by Item 1115(b)(1) or (b)(2) of Regulation AB (as
specified by the Depositor to Party A) with respect to Party A (or any
guarantor of Party A if providing the financial data of a guarantor is
permitted under Regulation AB) and any affiliated entities providing
derivative instruments to Party B (the "Company Financial
Information"), in a form appropriate for use in the Exchange Act
Reports and in an XXXXX-compatible form; (b) if applicable, cause its
accountants to issue their consent to filing or incorporation by
reference of such financial statements in the Exchange Act Reports of
Party B and (c) within 5 Business Days of the release of any updated
financial information, provide current Company Financial Information
as required under Item 1115(b) of Regulation AB to the Depositor in an
XXXXX-compatible form and, if applicable, cause its accountants to
issue their consent to filing or incorporation by reference of such
financial statements in the Exchange Act Reports of Party A or (B)
assign this Agreement at its own cost to another entity that has
agreed to take the actions described in clause (A) of this sentence
with respect to itself (and which has the same or better rating from
the Rating Agencies as Party A as of the date of such assignment). For
the avoidance of doubt, Party A is not required to take any action
pursuant to this paragraph and the failure of Party A to take any such
action will not constitute an Event of Default under this Agreement.
As used in this Agreement the following words shall have the
following meanings:
"DEPOSITOR" shall mean Xxxxxxx Xxxxx Mortgage Investors, Inc.
"XXXXX" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
R-25
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated thereunder
"EXCHANGE ACT REPORTS" shall mean all Distribution Reports on
Form 10-D, Current Reports on Form 8-K and Annual Reports on Form
10-K that are to be filed with respect to Party B pursuant to the
Exchange Act.
"PROSPECTUS SUPPLEMENT" shall mean the prospectus supplement
prepared in connection with the public offering and sale of the
Offered Certificates.
"RATING AGENCY" shall mean each of Standard & Poor's, a division
of The XxXxxx-Xxxx Companies, Inc. and Xxxxx'x Investors Service,
Inc. If any such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized
statistical rating organization, or other comparable Person, as
is designated by the Depositor, notice of which designation shall
be given to the Trustee. References herein to a given rating
category of a Rating Agency shall mean such rating category
without giving effect to any modifiers.
"REGULATION AB" shall mean the Asset Backed Securities Regulation
AB, 17 C.F.R. Sections 229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the
adopting release (Asset-Backed Securities, Securities Act Release
No. 33-8518, 70 Fed. Reg. 1,506-1,631 (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.
(l) SUPPLEMENTAL INTEREST TRUST TRUSTEE CAPACITY. It is expressly
understood and agreed by the parties hereto that insofar as this
Agreement is executed by Xxxxx Fargo Bank, National Association (i)
this Agreement is executed and delivered by Xxxxx Fargo Bank, National
Association not in its individual capacity but solely as Supplemental
Interest Trust Trustee under the PSA in the exercise of the powers and
authority conferred and vested in it as supplemental interest trust
trustee thereunder, (ii) each of the representations, undertakings and
agreements herein made on behalf of Party B is made and intended not
as personal representations of the Supplemental Interest Trust Trustee
but is made and intended for the purpose of binding only the
Supplemental Interest Trust, and (iii) under no circumstances shall
Xxxxx Fargo Bank, National Association in its individual capacity be
personally liable for the payment of any indebtedness or expenses or
be personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this
Agreement.
(m) "INDEMNIFIABLE TAX" Notwithstanding the definition of
"Indemnifiable Tax" in Section 14 of this Agreement, in relation to
payments by Party A, no Tax shall be an Indemnifiable Tax. In relation
to payments by Party B, no Tax shall be an Indemnifiable Tax, unless
the Tax is due to a Change in Tax Law and otherwise satisfies the
definition of Indemnifiable Tax provided in Section 14.
(n) If Party A consolidates or amalgamates with, merges with or into,
or transfers all or substantially all its assets to, another entity,
where such action does not constitute an event described in Section
5(a)(viii), Party A shall either (A) provide a legal opinion that none
of Party A's payments to Party B under this Agreement will be subject
to deduction or withholding for or on account of any Tax or (B)
notwithstanding the definition of "Indemnifiable Tax" in Section 14 of
this Agreement, all Taxes in relation to payments by Party A shall be
Indemnifiable Taxes unless such Taxes (x) are assessed directly
against Party B and not by deduction or withholding by such Eligible
Replacement or (y)
R-26
arise as a result of a Change in Tax Law (in which case such Tax shall
be an Indemnifiable Tax only if such Tax satisfies the definition of
Indemnifiable Tax provided in Section 14).
(o) LIMITED RECOURSE. Party A agrees that the obligations of Party B
hereunder are limited recourse obligations payable solely from the
assets of Party B, and due to the extent funds are available for the
payment thereof in accordance with the priority of payments described
in the PSA. Party A and Party B agree that this Part 5(o) shall
survive the termination of this Agreement for any reason whatsoever.
R-27
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof:
XXXXXX XXXXXXX CAPITAL SERVICES INC. XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not individually, but solely as
Supplemental Interest Trust Trustee on
behalf of the Supplemental Interest
Trust relating to the Xxxxxxx Xxxxx
Alternative Note Asset Trust,
Series 2007-OAR3 Mortgage Pass-Through
Certificates
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
R-28
EXHIBIT A
Credit Support Annex
R-29
Paragraph 13. Elections and Variables
THIS ANNEX SUPPLEMENTS, FORMS PART OF, AND IS SUBJECT TO, THE ISDA
MASTER AGREEMENT REFERRED TO ABOVE, IS PART OF ITS SCHEDULE AND IS A
CREDIT SUPPORT DOCUMENT UNDER THIS AGREEMENT WITH RESPECT TO EACH
PARTY.
ACCORDINGLY, THE PARTIES AGREE AS FOLLOWS:
Paragraphs 1-12. Incorporation. PARAGRAPHS 1 THROUGH 12 INCLUSIVE OF
THE ISDA CREDIT SUPPORT ANNEX (BILATERAL FORM) (ISDA AGREEMENTS
SUBJECT TO NEW YORK LAW ONLY) PUBLISHED IN 1994 BY THE INTERNATIONAL
SWAPS AND DERIVATIVES ASSOCIATION, INC. ARE INCORPORATED HEREIN BY
REFERENCE AND MADE A PART HEREOF.
(a) SECURITY INTEREST FOR "OBLIGATIONS". The term "Obligations" as used in this
Annex includes the following additional obligations with respect to Party A and
Party B: None.
(b) CREDIT SUPPORT OBLIGATIONS.
(i) "Delivery Amount" and "Return Amount" each has the meaning
specified in Paragraph 3; provided that, in the event that Party A
elects or is required to post collateral pursuant to a ratings
downgrade by S&P and Xxxxx'x, (1) the Delivery Amount shall be
calculated by reference to the requirements set forth by the rating
agency that would result in Party A transferring the greater amount of
Eligible Credit Support and (2) the Return Amount shall be calculated
by reference to the requirements set forth by the rating agency that
would result in Party B transferring the least amount of Posted Credit
Support; provided further that, for purposes of calculating Delivery
Amount and Return Amount, in the event that Party A elects or is
required to post collateral pursuant to an S&P Second Tier Downgrade
Event, the definition of Value shall be amended to insert the words
"multiplied by the applicable Valuation Percentage, if any" after the
word "thereof" and before the semicolon in clause (i)(A) thereof.
"CREDIT SUPPORT AMOUNT" has the meaning specified below:
(A) in the event Party A elects or is required to post collateral
pursuant to Part 5(f)(iii) of the Schedule due to a ratings
downgrade or withdrawal by S&P, "CREDIT SUPPORT AMOUNT" shall
have the meaning specified in Paragraph 3; and
(B) in the event Party A elects or is required to post collateral
pursuant to Part 5(f)(iv) of the Schedule due to a ratings
downgrade or withdrawal by S&P, "CREDIT SUPPORT AMOUNT" shall
mean 125% of the Secured Party's Exposure; and
(C) in the event Party A elects to post collateral pursuant to
Part 5(f)(i) of the Schedule due to a ratings downgrade by
Xxxxx'x below the Xxxxx'x First Tier Required Swap Counterparty
Rating, "CREDIT SUPPORT AMOUNT" shall have the meaning specified
in Table 1A or Table 1B, as applicable, attached hereto; and
R-30
(D) in the event Party A is required to post collateral pursuant
to Part 5(f)(ii) of the Schedule due to a ratings downgrade or
withdrawal by Xxxxx'x below the Xxxxx'x Second Tier Required Swap
Counterparty Rating, "CREDIT SUPPORT AMOUNT" shall have the
meaning specified in Table 2A or 2B, as applicable, attached
hereto.
(ii) ELIGIBLE COLLATERAL.
(A) In the event Party A elects or is required to post collateral
pursuant to Part 5(f)(iii) of the Schedule due to a ratings
downgrade or withdrawal by S&P, (i) the items specified in Table
3 attached hereto will qualify as "ELIGIBLE COLLATERAL" for Party
A and (ii) the Valuation Percentage with respect any item of
Eligible Collateral shall equal 100% divided by the Base
Overcollateralization Rate for such item of Eligible Collateral
specified in Table 3 attached hereto.
(B) In the event Party A elects or is required to post collateral
pursuant to Part 5(f)(iv) of the Schedule due to a ratings
downgrade or withdrawal by S&P, (i) the items specified in Table
3 attached hereto will qualify as "ELIGIBLE COLLATERAL" for Party
A and (ii) the Valuation Percentage with respect any item of
Eligible Collateral shall equal (1) 100% divided by (2) the Base
Overcollateralization Rate for such item of Eligible Collateral
specified in Table 3 attached hereto * 125%.
(C) In the event Party A elects to post collateral pursuant to
Part 5(f)(i) of the Schedule due to a ratings downgrade by
Xxxxx'x below the Xxxxx'x First Tier Required Swap Counterparty
Rating, the items specified in Table 4 attached hereto will
qualify as "ELIGIBLE COLLATERAL" for Party A.
(D) In the event Party A is required to post collateral pursuant
to Part 5(f)(ii) of the Schedule due to a ratings downgrade or
withdrawal by Xxxxx'x below the Xxxxx'x Second Tier Required Swap
Counterparty Rating, the items specified in Table 5 attached
hereto will qualify as "ELIGIBLE COLLATERAL" for Party A.
(iii) OTHER ELIGIBLE SUPPORT: Not applicable.
(iv) THRESHOLDS.
(A) "Independent Amount" means, with respect to Party A, not
applicable in the event Party A elects or is required to post
collateral pursuant to Part 5(f) of the Schedule due to a ratings
downgrade or withdrawal by S&P or Xxxxx'x.
"Independent Amount" means, with respect to Party B, zero.
(B) "Threshold" means with respect to Party A, (i) not applicable
in the event Party A elects or is required to post collateral
pursuant to Part 5(f) of the Schedule due to a ratings downgrade
or withdrawal by Moody's and (ii) zero in the event that Party A
elects or is required to post collateral pursuant to Part 5(f) of
the Schedule due to a ratings downgrade or withdrawal by S&P.
R-31
"Threshold" means with respect to Party B: Infinite.
"Minimum Transfer Amount" means with respect to Party A: USD
50,000; and with respect to Party B: USD 50,000; provided,
however, that if such party is a Defaulting Party at the
time,
"Minimum Transfer Amount" shall mean zero with respect to
such party.
(C) ROUNDING. The Delivery Amount will be rounded up to the
nearest multiple of $1000 and the Return Amount will be rounded
down to the nearest multiple of $1000.
(v) "EXPOSURE" has the meaning specified in Paragraph 12, except that
after the word "Agreement" in the fourth line thereof the words
"(assuming, for this purpose only, that Part 1(f)(ii) of the Schedule
is deleted)" shall be inserted.
(c) VALUATION AND TIMING.
(i) "Valuation Agent" means for purposes of Paragraphs 3 and 5, the
party making the demand under Paragraph 3, and, for purposes of
Paragraph 6(d), the Secured Party receiving or deemed to receive the
Distributions or the Interest Amount, as applicable.
(ii) "Valuation Date" means (A) each and every Wednesday commencing on
the first such date following the date hereof or if any Wednesday is
not a Local Business Day, the next succeeding Local Business Day and
(B) any other Local Business Day on which notice is made before 12:00
noon, New York time on the immediately preceding Local Business Day.
(iii) "Valuation Time" means the close of business in New York on the
New York Banking Day before the Valuation Date or date of calculation,
as applicable, or any time on the Valuation Date or date of
calculation, as applicable; provided that the calculations of Value
and Exposure will be made as of approximately the same time on the
same date.
(iv) "Notification Time" means 1:00 p.m., New York time, on a Local
Business Day.
(v) The Valuation Agent's calculations pursuant to the terms hereof
shall be made in accordance with standard market practice, using
commonly accepted third party sources that comply with S&P's criteria
(e.g. Bloomberg, Bridge Information Services, Reuters and Telerate).
(d) CONDITIONS PRECEDENT AND SECURED PARTY'S RIGHTS AND REMEDIES. The following
Termination Events will be a "Specified Condition" for the party specified (that
party being the Affected Party of the Termination Event occurs with respect to
that party): Not Applicable.
(e) SUBSTITUTION.
(i) "Substitution Date" has the meaning specified in Paragraph
4(d)(ii).
R-32
(ii) CONSENT. The Pledgor need not obtain the Secured Party's consent
for any substitution pursuant to Paragraph 4(d).
(f) DISPUTE RESOLUTION.
(i) "Resolution Time" means 1:00 p.m., New York time, on the Local
Business Day following the date on which the notice of the dispute is
given under Paragraph 5.
(ii) VALUE. For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value
of Posted Credit Support or of any Transfer of Eligible Credit Support
or Posted Credit Support, as the case may be, will be calculated by
the Valuation Agent in accordance with standard market practice using
third party sources (such as, by way of example only, Bloomberg or
Reuters) where available.
(iii) ALTERNATIVE. The provisions of Paragraph 5 will apply.
(g) HOLDING AND USING POSTED COLLATERAL.
(i) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIAN.
Party B and its Custodian will be entitled to hold Posted Collateral
pursuant to Paragraph 6(b); provided that the following conditions
applicable to it are satisfied:
(A) Party B is not a Defaulting Party.
(B) Posted Collateral may be held only in the following
jurisdictions: the United States of America.
(C) Party B's Custodian (or its parent) shall have a Long Term
Rating by S&P of at least "A" and a Short Term Rating by S&P of
at least "A-1" by S&P.
(D) Posted Collateral may be held only in a segregated trust
account.
Initially, the CUSTODIAN for Party B is the Supplemental
Interest Trust Trustee.
(ii) USE OF POSTED COLLATERAL. The provisions of Paragraph 6(c)(i)
will not apply to Party B, but the provisions of Paragraph 6(c)(ii)
will apply to Party B.
(h) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) "Interest Rate". The "INTEREST RATE" shall be the rate actually
earned by Party B on Posted Collateral in the form of Cash.
(ii) TRANSFER OF INTEREST AMOUNT. The Transfer of the Interest Amount
will be made on the last Local Business Day of each calendar month and
on any Local Business Day that Posted Collateral in the form of Cash
is Transferred to the Pledgor pursuant to Paragraph 3(b).
(iii) ALTERNATIVE TO INTEREST AMOUNT. The provisions of Paragraph
6(d)(ii) will apply.
R-33
(i) ADDITIONAL REPRESENTATION(S). None.
(j) OTHER ELIGIBLE SUPPORT AND OTHER POSTED SUPPORT. "Value" and "Transfer" with
respect to Other Eligible Support and Other Posted Support each means: Not
applicable.
(k) DEMANDS AND NOTICES.
(i) All demands, specifications and notices to Party A under this
Annex will be made to:
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx
XXX Xxxxxxxxxxx
Xxx Xxxx, XX 00000
Attn: FID Collateral Manager
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Email: xxxxxxxxx@xxxxxxxxxxxxx.xxx
and all demands, specifications and notices to Party B under this
Annex will be to:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - MANA 2007-OAR3
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
; provided that any demand, specification or notice may be made by
telephone ("Telephone Notice") between employees of each party if such
Telephone Notice is confirmed by a subsequent written instruction (which
may be delivered via facsimile or email) by the close of business on the
same day that such Telephone Notice is given.
(ii) DEMAND FOR COLLATERAL. Without prejudice to any provision of this
Agreement, if a Delivery Amount for a Valuation Date equals or exceeds
the Pledgor's Minimum Transfer Amount, then the Pledgor will, without
prior demand by the Secured Party, Transfer to the Secured Party
Eligible Credit Support in accordance with Paragraph 3(a).
(l) ADDRESSES FOR TRANSFERS.
Party A:
Cash: CITIBANK, New York
ABA No.: 021 000 089
Account No.: 4072 - 4601
Treasury Securities
and Agency Notes: Bank of New York, New York/Xxxxxx Xxxxxxx
& Co. Incorporated
ABA No.: 000000000
Other Forms of Eligible Collateral: As provided by Party A.
R-34
Party B:
Cash: Xxxxx Fargo Bank, N.A.
ABA No.: 121 000 248
Account No.: 0000000000
Account Name: SAS Clearing
FFC: 53163404, MANA 2007-OAR3(swap)
(m) OTHER PROVISIONS.
(i) Notwithstanding any other provision in this Agreement to the
contrary, no full or partial failure to exercise and no delay in
exercising, on the part of Party A or Party B, any right, remedy,
power or privilege permitted hereunder shall operate in any way as a
waiver thereof by such party, including without limitation any failure
to exercise or any delay in exercising to any or to the full extent of
such party's rights with respect to transfer timing pursuant to
Paragraph 4(b), regardless of the frequency of such failure or delay.
(ii) In all cases, in order to facilitate calculation of the Delivery
Amount and the Return Amount for a particular Valuation Date in
accordance with Paragraph 3 of this Annex:
(A) Eligible Collateral;
(B) Exposure; and
(C) Posted Collateral
shall each be expressed in US Dollars. If any of these items are
expressed in a currency other than US Dollars, then they shall be
converted into US Dollar amounts at the spot exchange rate
determined by the Valuation Agent on that Valuation Date.
(iii) FORM OF ANNEX. The parties hereby agree that the text of the
body of this Annex is intended to be the printed form of 1994 ISDA
Credit Support Annex (Bilateral Form - ISDA Agreements Subject to New
York Law Only version) as published and copyrighted by the
International Swaps and Derivatives Association, Inc.
(n) AGREEMENT AS TO SINGLE SECURED PARTY AND PLEDGOR. Party A and Party B agree
that, notwithstanding anything to the contrary in the recital to this Annex,
Paragraph 1(b) or Paragraph 2 or the definitions of Paragraph 12, (a) the term
"Secured Party" as used in this Annex shall mean only Party B, (b) the term
"Pledgor" as used in this Annex shall mean only Party A, (c) only Party A makes
the pledge and grant in Paragraph 2, the acknowledgement in the final sentence
of Paragraph 8(a) and the representations in paragraph 9 and (d) only Party A
will be required to make Transfers of Eligible Credit Support hereunder.
(o) EVENTS OF DEFAULT. Paragraph 7(ii) and (iii) will not apply to Party B.
(p) EXPENSES. For the avoidance of doubt, Party A shall be responsible for
posting collateral in accordance with this Credit Support Annex at its own cost
and any taxes or other costs incurred by it in complying with its obligations
hereunder.
R-35
(q) ADDITIONAL DEFINITIONS.
"AGENCY NOTES" MEANS U.S. DOLLAR-DENOMINATED FIXED RATE, NON-AMORTISING,
NON-MORTGAGE-BACKED, SENIOR DEBT SECURITIES OF FIXED MATURITY, RATED AAA BY
MOODY'S AND AAA BY S&P ISSUED BY ANY OF THE FEDERAL HOME LOAN BANKS
(INCLUDING THEIR CONSOLIDATED OBLIGATIONS ISSUED THROUGH THE OFFICE OF
FINANCE OF THE FEDERAL HOME LOAN BANK SYSTEM), THE FEDERAL NATIONAL
MORTGAGE ASSOCIATION, THE FEDERAL HOME LOAN MORTGAGE CORPORATION OR THE
FEDERAL FARM CREDIT BANK.
"COMMERCIAL PAPER" MEANS U.S. DOLLAR-DENOMINATED, COUPON-BEARING,
COMMERCIAL PAPER ISSUED BY A CORPORATION, FINANCE COMPANY, PARTNERSHIP OR
LIMITED LIABILITY COMPANY.
"TREASURY SECURITIES" MEANS U.S. DOLLAR-DENOMINATED, COUPON-BEARING, SENIOR
DEBT SECURITIES OF THE UNITED STATES OF AMERICA ISSUED BY THE U.S. TREASURY
DEPARTMENT AND BACKED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF
AMERICA.
(r) SUPPLEMENTAL INTEREST TRUST TRUSTEE CAPACITY. It is expressly understood and
agreed by the parties hereto that insofar as this Annex is executed by Xxxxx
Fargo Bank, National Association (i) this Annex is executed and delivered by
Xxxxx Fargo Bank, National Association, not in its individual capacity but
solely as Supplemental Interest Trust Trustee under the PSA in the exercise of
the powers and authority conferred and invested in it as Supplemental Interest
Trust Trustee thereunder, (ii) each of the representations, undertakings and
agreements herein made on behalf of the Trust is made and intended not as
personal representations of the Supplemental Interest Trust Trustee but is made
and intended for the purpose of binding only the Trust, and (iii) under no
circumstances shall Xxxxx Fargo Bank, National Association in its individual
capacity be personally liable for the payment of any indebtedness or expenses or
be personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this Annex.
R-36
IN WITNESS WHEREOF, the parties have executed this Credit Support
Annex by their duly authorized officers as of the date hereof.
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not individually, but solely as
Supplemental Interest Trust Trustee on
behalf of the Supplemental Interest
Trust relating to the Xxxxxxx Xxxxx
Alternative Note Asset Trust, Series
2007-OAR3 Mortgage Pass-Through
Certificates
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
R-37
TABLE 1A
CREDIT SUPPORT AMOUNT
DOWNGRADE BY MOODY'S BELOW MOODY'S FIRST TIER REQUIRED
SWAP COUNTERPARTY RATING
In the event Party A elects to post collateral pursuant to Part 5(f)(i) of the
Schedule due to a ratings downgrade by Moody's below the Moody's First Tier
Required Swap Counterparty Rating:
"CREDIT SUPPORT AMOUNT" means, with respect to a Valuation Date, an amount equal
to either:
(A) The greater of (1) zero and (2) the sum of (a) the MTM and (b) the lesser of
(x) 25 multiplied by DV01 and (y) 4% multiplied by the Notional Amount * 10; or
(B) The greater of (1) zero and (2) the sum of (a) the MTM and (b) the Notional
Amount * 10 multiplied by the amount specified in Table 1B attached hereto.
Party A shall, in its sole discretion, have the option to determine the Credit
Support Amount based upon either (A) or (B) above.
"DV01" means an estimate (as determined by the Valuation Agent in good faith and
in a commercially reasonable manner) of the change in the Secured Party's
Exposure resulting from a one basis point change in the swap curve.
"MTM" means the Secured Party's Exposure for that Valuation Date.
R-38
TABLE 1B
WEIGHTED AVERAGE
LIFE OF HEDGE
IN YEARS
----------------
1 0.25%
2 0.50%
3 0.70%
4 1.00%
5 1.20%
6 1.40%
7 1.60%
8 1.80%
9 2.00%
10 2.20%
11 2.30%
12 2.50%
13 2.70%
14 2.80%
15 3.00%
16 3.20%
17 3.30%
18 3.50%
19 3.60%
20 3.70%
21 3.90%
22 4.00%
23 4.00%
24 4.00%
25 4.00%
26 4.00%
27 4.00%
28 4.00%
29 4.00%
30 4.00%
R-39
TABLE 2A
CREDIT SUPPORT AMOUNT
DOWNGRADE BY MOODY'S BELOW MOODY'S SECOND TIER REQUIRED
SWAP COUNTERPARTY RATING
In the event Party A is required to post collateral pursuant to Part 5(f)(ii) of
the Schedule due to a ratings downgrade by Moody's below the Moody's Second Tier
Required Swap Counterparty Rating:
"CREDIT SUPPORT AMOUNT" means, with respect to a Valuation Date, an amount equal
to either:
(A) The greatest of (1) zero, (2) the amount payable by Party A in respect of
the next Floating Rate Payer Payment Date, and (3) the sum of (a) the MTM and
(b) the lesser of (x) 60 multiplied by DV01 and (y) 9% multiplied by the
Notional Amount * 10; or
(B) The greatest of (1) zero, (2) the amount payable by Party A in respect of
the next Floating Rate Payer Payment Date, and (3) the sum of (a) the MTM and
(b) the Notional Amount * 10 multiplied by the amount specified in Table 2B
attached hereto.
Party A shall, in its sole discretion, have the option to determine the Credit
Support Amount based upon either (A) or (B) above.
"DV01" means an estimate (as determined by the Valuation Agent in good faith and
in a commercially reasonable manner) of the change in the Secured Party's
Exposure resulting from a one basis point change in the swap curve.
"MTM" means the Secured Party's Exposure for that Valuation Date.
R-40
TABLE 2B
WEIGHTED AVERAGE
LIFE OF HEDGE
IN YEARS
----------------
1 0.60%
2 1.20%
3 1.70%
4 2.30%
5 2.80%
6 3.30%
7 3.80%
8 4.30%
9 4.80%
10 5.30%
11 5.60%
12 6.00%
13 6.40%
14 6.80%
15 7.20%
16 7.60%
17 7.90%
18 8.30%
19 8.60%
20 9.00%
21 9.00%
22 9.00%
23 9.00%
24 9.00%
25 9.00%
26 9.00%
27 9.00%
28 9.00%
29 9.00%
30 9.00%
R-41
TABLE 3
ELIGIBLE COLLATERAL
S&P
BASE
OVERCOLLATERALIZATION
ELIGIBLE COLLATERAL RATE
------------------- ---------------------
Cash 100%
U.S. treasuries (current coupon, constant maturity), 102%
'AAA' U.S. agencies, 'AAA' covered bonds (floating),
'AAA' sovereign bonds (floating), 'AAA', 'AA' credit
card ABS (floating), 'AAA', 'AA' auto ABS (floating),
and 'AAA' U.S. student loan ABS (floating) with a
remaining maturity of less than 5 years
U.S. treasuries (current coupon, constant maturity), 108%
'AAA' U.S. agencies, 'AAA' covered bonds (floating),
'AAA' sovereign bonds (floating), 'AAA', 'AA' credit
card ABS (floating), 'AAA', 'AA' auto ABS (floating),
and 'AAA' U.S. student loan ABS (floating) with a
remaining maturity of greater than or equal to 5 years
and less than or equal to 10 years
'AAA' covered bonds (fixed), 'AAA' sovereign bonds 105%
(fixed), 'A' credit card ABS (floating), 'A' auto ABS
(floating), 'AAA' CMBS (floating), 'AAA' CDO (floating)
'AA', 'A' U.S. student loan ABS (floating), and 'AAA',
'AA' corporate bonds (fixed or floating) with a
remaining maturity of less than 5 years
'AAA' covered bonds (fixed), 'AAA' sovereign bonds 115%
(fixed), 'A' credit card ABS (floating), 'A' auto ABS
(floating), 'AAA' CMBS (floating), 'AAA' CDO (floating),
'AA', 'A' U.S. student loan ABS (floating), and 'AAA',
'AA' U.S. and European corporate bonds (fixed or
floating) with a remaining maturity of greater than or
equal to 5 years and less than or equal to 10 years
'BBB' credit card ABS (floating), 'BBB' auto ABS 125%
(floating), 'AA', 'A' CDO (floating),
R-42
BASE
OVERCOLLATERALIZATION
ELIGIBLE COLLATERAL RATE
------------------- ---------------------
'BBB' U.S. student loan ABS (floating), and 'A'
corporate bonds (fixed or floating) with a remaining
maturity of less than 5 years
'BBB' credit card ABS (floating), 'BBB' auto ABS 140%
(floating), 'AA', 'A' CDO (floating), 'BBB' U.S. student
loan ABS (floating), and 'A' corporate bonds (fixed or
floating) with a remaining maturity of greater than or
equal to 5 years and less than or equal to 10 years
R-43
TABLE 4
ELIGIBLE COLLATERAL
DOWNGRADE BY MOODY'S BELOW MOODY'S FIRST TIER REQUIRED
SWAP COUNTERPARTY RATING
ELIGIBLE COLLATERAL VALUATION PERCENTAGE
------------------- --------------------
U.S. Dollar Cash 100%
EURO Cash 97%
Sterling Cash 97%
Fixed-Rate Negotiable Treasury Debt Issued by The U.S. Treasury Department with
Remaining Maturity
< 1 Year 100%
1 to 2 Years 100%
2 to 3 Years 100%
3 to 5 Years 100%
5 to 7 Years 100%
7 to 10 Years 100%
10 to 20 Years 100%
> 20 Years 100%
Floating-Rate Negotiable Treasury Debt issued by The U.S. Treasury Department
All Maturities 100%
Fixed-Rate U.S. Agency Debentures with Remaining Maturity
< 1 Year 100%
1 to 2 Years 100%
2 to 3 Years 100%
3 to 5 Years 100%
5 to 7 Years 100%
7 to 10 Years 100%
10 to 20 Years 100%
> 20 Years 100%
Floating-Rate U.S. Agency Debentures -
All Maturities 100%
Fixed-Rate Euro-Zone Government Bonds Rated AA3 or Above with Remaining Maturity
< 1 Year 97%
1 to 2 Years 97%
2 to 3 Years 97%
3 to 5 Years 97%
5 to 7 Years 97%
R-44
ELIGIBLE COLLATERAL VALUATION PERCENTAGE
------------------- --------------------
7 to 10 Years 97%
10 to 20 Years 97%
> 20 Years 97%
Floating-Rate Euro-Zone Government Bonds Rated AA3 or Above
All Maturities 97%
Fixed-Rate United Kingdom Gilts with Remaining Maturity
< 1 Year 97%
1 to 2 Years 97%
2 to 3 Years 97%
3 to 5 Years 97%
5 to 7 Years 97%
7 to 10 Years 97%
10 to 20 Years 97%
> 20 Years 97%
Floating-Rate United Kingdom Gilts All Maturities 97%
R-45
TABLE 5
ELIGIBLE COLLATERAL
DOWNGRADE BY XXXXX'X BELOW XXXXX'X SECOND TIER REQUIRED
SWAP COUNTERPARTY RATING
ELIGIBLE COLLATERAL VALUATION PERCENTAGE
------------------- --------------------
U.S. Dollar Cash 100%
EURO Cash 93%
Sterling Cash 94%
Fixed-Rate Negotiable Treasury Debt Issued by The U.S. Treasury Department with
Remaining Maturity
< 1 Year 100%
1 to 2 Years 99%
2 to 3 Years 98%
3 to 5 Years 97%
5 to 7 Years 95%
7 to 10 Years 94%
10 to 20 Years 89%
> 20 Years 87%
Floating-Rate Negotiable Treasury Debt issued by The U.S. Treasury Department
All Maturities 99%
Fixed-Rate U.S. Agency Debentures with Remaining Maturity
< 1 Year 99%
1 to 2 Years 98%
2 to 3 Years 97%
3 to 5 Years 96%
5 to 7 Years 94%
7 to 10 Years 93%
10 to 20 Years 88%
> 20 Years 86%
Floating-Rate U.S. Agency Debentures - All Maturities 98%
Fixed-Rate Euro-Zone Government Bonds Rated AA3 or Above with Remaining Maturity
< 1 Year 93%
1 to 2 Years 92%
2 to 3 Years 91%
3 to 5 Years 89%
5 to 7 Years 87%
7 to 10 Years 86%
10 to 20 Years 82%
R-46
ELIGIBLE COLLATERAL VALUATION PERCENTAGE
------------------- --------------------
> 20 Years 80%
Floating-Rate Euro-Zone Government Bonds Rated AA3 or Above
All Maturities 92%
Fixed-Rate United Kingdom Gilts with Remaining Maturity
< 1 Year 93%
1 to 2 Years 92%
2 to 3 Years 91%
3 to 5 Years 90%
5 to 7 Years 89%
7 to 10 Years 88%
10 to 20 Years 84%
> 20 Years 82%
Floating-Rate United Kingdom Gilts All Maturities 93%
R-47
EXHIBIT S
[RESERVED]
S-1
EXHIBIT T
[RESERVED]
T-1
EXHIBIT U-1
STANDARD FILE LAYOUT - MASTER SERVICING
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT MAX SIZE
----------- ------------------------------- ------- ------------------------ --------
SER_INVESTOR_NBR A value assigned by the Text up to 10 digits 20
Servicer to define a group of
loans.
LOAN_NBR A unique identifier assigned to Text up to 10 digits 10
each loan by the investor.
SERVICER_LOAN_NBR A unique number assigned to a Text up to 10 digits 10
loan by the Servicer. This may
be different than the LOAN_NBR.
BORROWER_NAME The borrower name as received Maximum length of 30 30
in the file. It is not (Last, First)
separated by first and last
name.
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or dollar 11
scheduled interest payment that signs ($)
a borrower is expected to pay,
P&I constant.
NOTE_INT_RATE The loan interest rate as 4 Max length of 6 6
reported by the Servicer.
NET_INT_RATE The loan gross interest rate 4 Max length of 6 6
less the service fee rate as
reported by the Servicer.
SERV_FEE_RATE The servicer's fee rate for a 4 Max length of 6 6
loan as reported by the
Servicer.
SERV_FEE_AMT The servicer's fee amount for a 2 No commas(,) or dollar 11
loan as reported by the signs ($)
Servicer.
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) or dollar 11
reported by the Servicer. signs ($)
NEW_LOAN_RATE The new loan rate as reported 4 Max length of 6 6
by the Servicer.
ARM_INDEX_RATE The index the Servicer is using 4 Max length of 6 6
to calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar 11
balance at the beginning of the signs ($)
processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar 11
balance at the end of the signs ($)
processing cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of MM/DD/YYYY 10
processing cycle that the
borrower's next payment is due
to the Servicer, as reported by
Servicer.
SERV_CURT_AMT_1 The first curtailment amount to 2 No commas(,) or dollar 11
be applied. signs ($)
U-1-1
SERV_CURT_DATE_1 The curtailment date associated MM/DD/YYYY 10
with the first curtailment
amount.
CURT_ADJ_ AMT_1 The curtailment interest on the 2 No commas(,) or dollar 11
first curtailment amount, if signs ($)
applicable.
SERV_CURT_AMT_2 The second curtailment amount 2 No commas(,) or dollar 11
to be applied. signs ($)
SERV_CURT_DATE_2 The curtailment date associated MM/DD/YYYY 10
with the second curtailment
amount.
CURT_ADJ_ AMT_2 The curtailment interest on the 2 No commas(,) or dollar 11
second curtailment amount, if signs ($)
applicable.
SERV_CURT_AMT_3 The third curtailment amount to 2 No commas(,) or dollar 11
be applied. signs ($)
SERV_CURT_DATE_3 The curtailment date associated MM/DD/YYYY 10
with the third curtailment
amount.
CURT_ADJ_AMT_3 The curtailment interest on the 2 No commas(,) or dollar 11
third curtailment amount, if signs ($)
applicable.
PIF_AMT The loan "paid in full" amount 2 No commas(,) or dollar 11
as reported by the Servicer. signs ($)
PIF_DATE The paid in full date as MM/DD/YYYY 10
reported by the Servicer.
ACTION_CODE The standard FNMA numeric code Action Code Key: 2
used to indicate the 15=Bankruptcy,
default/delinquent status of a 30=Foreclosure, ,
particular loan. 60=PIF, 63=Substitution,
65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest 2 No commas(,) or dollar 11
adjustment as reported by the signs ($)
Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor 2 No commas(,) or dollar 11
Adjustment amount, if signs ($)
applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan 2 No commas(,) or dollar 11
Amount, if applicable. signs ($)
LOAN_LOSS_AMT The amount the Servicer is 2 No commas(,) or dollar 11
passing as a loss, if signs ($)
applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding 2 No commas(,) or dollar 11
principal amount due at the signs ($)
beginning of the cycle date to
be passed through to investors.
SCHED_END_PRIN_BAL The scheduled principal balance 2 No commas(,) or dollar 11
due to investors at the end of signs ($)
a processing cycle.
SCHED_PRIN_AMT The scheduled principal amount 2 No commas(,) or dollar 11
as reported by the Servicer for signs ($)
the current cycle -- only
applicable for
Scheduled/Scheduled Loans.
U-1-2
SCHED_NET_INT The scheduled gross interest 2 No commas(,) or dollar 11
amount less the service fee signs ($)
amount for the current cycle as
reported by the Servicer --
only applicable for
Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or dollar 11
collected by the Servicer for signs ($)
the current reporting cycle --
only applicable for
Actual/Actual Loans.
ACTL_NET_INT The actual gross interest 2 No commas(,) or dollar 11
amount less the service fee signs ($)
amount for the current
reporting cycle as reported by
the Servicer -- only applicable
for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received 2 No commas(,) or dollar 11
when a borrower prepays on his signs ($)
loan as reported by the
Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount 2 No commas(,) or dollar 11
for the loan waived by the signs ($)
servicer.
MOD_DATE The Effective Payment Date of MM/DD/YYYY 10
the Modification for the loan.
MOD_TYPE The Modification Type. Varchar - value can be 30
alpha or numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding 2 No commas(,) or dollar 11
principal and interest advances signs ($)
made by Servicer.
BREACH_FLAG* Flag to indicate if the Y=Breach
repurchase of a loan is due to N=NO Breach
a breach of Representations and Let blank if N/A
Warranties
----------
* This data to be provided upon receipt of data from Depositor and may be
provided in a different format.
U-1-3
EXHIBIT U-2
STANDARD FILE LAYOUT - DELINQUENCY REPORTING
* The column/header names in BOLD are the minimum fields Xxxxx Fargo must
receive from every Servicer
FORMAT
COLUMN/HEADER NAME DESCRIPTION DECIMAL COMMENT
------------------ ---------------------------------------------- ------- ------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the
Servicer. This may be different than the
LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan by
the originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an
external servicer to identify a group of
loans in their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is MM/DD/YYYY
due to the servicer at the end of processing
cycle, as reported by Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was MM/DD/YYYY
filed.
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was
filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the
bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has MM/DD/YYYY
been approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. MM/DD/YYYY
Either by Dismissal, Discharged and/or a
Motion For Relief Was Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By MM/DD/YYYY
The Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A
Loan Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is MM/DD/YYYY
Scheduled To End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the MM/DD/YYYY
servicer with instructions to begin
foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue MM/DD/YYYY
Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in MM/DD/YYYY
a Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,)
foreclosure sale. or dollar
signs ($)
EVICTION_START_DATE The date the servicer initiates eviction of MM/DD/YYYY
the borrower.
EVICTION_COMPLETED_DATE The date the court revokes legal possession MM/DD/YYYY
of the property from the borrower.
LIST_PRICE The price at which an REO property is 2 No commas(,)
marketed. or dollar
signs ($)
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,)
property. or dollar
signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or MM/DD/YYYY
by the Servicer.
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
U-2-1
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is
occupied.
PROP_CONDITION_CODE A code that indicates the condition of the
property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property 2
based on brokers price opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if 2
repairs are completed pursuant to a broker's
price opinion or appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower to
stop paying on a loan. Code indicates the
reason why the loan is in default for this
cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With MM/DD/YYYY
Mortgage Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar
signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed MM/DD/YYYY
Claim Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On 2 No commas(,)
Claim or dollar
signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance 2 No commas(,)
Company or dollar
signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,)
or dollar
signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,)
or dollar
signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans MM/DD/YYYY
Admin
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
MOTION_FOR_RELIEF_DATE The date the Motion for Relief was filed 10 MM/DD/YYYY
FRCLSR_BID_AMT The foreclosure sale bid amount 11 No commas(,)
or dollar
signs ($)
FRCLSR_SALE_TYPE The foreclosure sales results: REO, Third
Party, Conveyance to HUD/VA
REO_PROCEEDS The net proceeds from the sale of the REO No commas(,)
property. or dollar
signs ($)
BPO_DATE The date the BPO was done.
U-2-2
CURRENT_FICO The current FICO score
HAZARD_CLAIM_FILED_DATE The date the Hazard Claim was filed with the 10 MM/DD/YYYY
Hazard Insurance Company.
HAZARD_CLAIM_AMT The amount of the Hazard Insurance Claim 11 No commas(,)
filed. or dollar
signs ($)
HAZARD_CLAIM_PAID_DATE The date the Hazard Insurance Company 10 MM/DD/YYYY
disbursed the claim payment.
HAZARD_CLAIM_PAID_AMT The amount the Hazard Insurance Company paid 11 No commas(,)
on the claim. or dollar
signs ($)
ACTION_CODE Indicates loan status Number
NOD_DATE MM/DD/YYYY
NOI_DATE MM/DD/YYYY
ACTUAL_PAYMENT_PLAN_START_DATE MM/DD/YYYY
ACTUAL_PAYMENT_ PLAN_END_DATE
ACTUAL_REO_START_DATE MM/DD/YYYY
REO_SALES_PRICE Number
REALIZED_LOSS/GAIN* As defined in the Pooling and Servicing Number
Agreement
* Which may be provided on a separate schedule.
STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
- ASUM- Approved Assumption
- BAP- Borrower Assistance Program
- CO- Charge Off
- DIL- Deed-in-Lieu
- FFA- Formal Forbearance Agreement
- MOD- Loan Modification
- PRE- Pre-Sale
- SS- Short Sale
- MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
- Mortgagor
- Tenant
- Unknown
- Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
- Damaged
U-2-3
- Excellent
- Fair
- Gone
- Good
- Poor
- Special Hazard
- Unknown
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------- -----------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
U-2-4
STANDARD FILE CODES - DELINQUENCY REPORTING
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
STATUS CODE STATUS DESCRIPTION
----------- ------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
U-2-5
EXHIBIT U-3
CALCULATION OF REALIZED LOSS/GAIN FORM 332- INSTRUCTION SHEET
NOTE: DO NOT NET OR COMBINE ITEMS. SHOW ALL EXPENSES INDIVIDUALLY AND ALL
CREDITS AS SEPARATE LINE ITEMS. CLAIM PACKAGES ARE DUE ON THE REMITTANCE
REPORT DATE. LATE SUBMISSIONS MAY RESULT IN CLAIMS NOT BEING PASSED UNTIL
THE FOLLOWING MONTH. THE SERVICER IS RESPONSIBLE TO REMIT ALL FUNDS PENDING
LOSS APPROVAL AND /OR RESOLUTION OF ANY DISPUTED ITEMS.
The numbers on the 332 form correspond with the numbers listed below.
LIQUIDATION AND ACQUISITION EXPENSES:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is required.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as
agreed. For documentation, an Amortization Schedule from date of
default through liquidation breaking out the net interest and
servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis. For documentation,
an Amortization Schedule from date of default through liquidation
breaking out the net interest and servicing fees advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period of coverage, base tax,
interest, penalty.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing all
payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision and
WFB's approved Officer Certificate for those transactions during
the related month (which may be provided on a separate schedule).
* Unusual or extraordinary items may require further documentation.
U-3-1
13. The total of lines 1 through 12.
(A) CREDITS:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial proceeds
and line (18b) for Part B/Supplemental proceeds.
TOTAL REALIZED LOSS (OR AMOUNT OF ANY GAIN)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis (________).
U-3-2
CALCULATION OF REALIZED LOSS/GAIN FORM 332
Prepared by: ________________________ Date: __________________________________
Phone: ______________________________ Email Address: _________________________
Servicer Loan No. Servicer Name Servicer Address
----------------- ------------- ----------------
XXXXX FARGO BANK, N.A. LOAN NO. ________________________________________________
Borrower's Name: _______________________________________________________________
Property Address: ______________________________________________________________
LIQUIDATION TYPE: REO SALE 3RD PARTY SALE SHORT SALE CHARGE OFF
WAS THIS LOAN GRANTED A BANKRUPTCY DEFICIENCY OR CRAMDOWN YES [ ] NO [ ]
If "Yes", provide deficiency or cramdown amount ________________________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $________________(1)
(2) Interest accrued at Net Rate ________________(2)
(3) Accrued Servicing Fees ________________(3)
(4) Attorney's Fees ________________(4)
(5) Taxes (see page 2) ________________(5)
(6) Property Maintenance ________________(6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________(7)
(8) Utility Expenses ________________(8)
(9) Appraisal/BPO ________________(9)
(10) Property Inspections ________________(10)
(11) FC Costs/Other Legal Expenses ________________(11)
(12) Other (itemize) ________________(12)
Cash for Keys ___________________________ ________________(12)
HOA/Condo Fees __________________________ ________________(12)
_________________________________________ ________________(12)
TOTAL EXPENSES $________________(13)
CREDITS:
(14) Escrow Balance $________________(14)
(15) HIP Refund ________________(15)
(16) Rental Receipts ________________(16)
(17) Hazard Loss Proceeds ________________(17)
(18) Primary Mortgage Insurance / Gov't Insurance
HUD Part A ________________(18a)
HUD Part B ________________(18b)
U-3-3
(19) Pool Insurance Proceeds ________________(19)
(20) Proceeds from Sale of Acquired Property ________________(20)
(21) Other (itemize) ________________(21)
______________________________________________ ________________(21)
TOTAL CREDITS $________________(22)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $________________(23)
U-3-4
ESCROW DISBURSEMENT DETAIL
TYPE PERIOD OF
(TAX /INS.) DATE PAID COVERAGE TOTAL PAID BASE AMOUNT PENALTIES INTEREST
----------- --------- --------- ---------- ----------- --------- --------
U-3-5
EXHIBIT V
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
SERVICING CRITERIA APPLICABLE
--------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
---------------- -------------------------------------------------------- ----------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any X
performance or other triggers and events of default in
accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to X
third parties, policies and procedures are instituted to
monitor the third party's performance and compliance
with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans are
maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in X
effect on the party participating in the servicing
function throughout the reporting period in the amount
of coverage required by and otherwise in accordance with
the terms of the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the X
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days
specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an X
obligor or to an investor are made only by authorized
personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, X
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash X
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally X
insured depository institution as set forth in the
transaction agreements. For purposes of this criterion,
"federally insured depository institution" with respect
to a foreign financial institution means a foreign
financial institution that meets the requirements of
Rule 13k-1(b)(1) of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent X
unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all X
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank
statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed
and
V-1
SERVICING CRITERIA APPLICABLE
--------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
---------------- -------------------------------------------------------- ----------
approved by someone other than the person who prepared
the reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved
within 90 calendar days of their original
identification, or such other number of days specified
in the transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with X
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in X
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two X
business days to the Servicer's investor records, or
such other number of days specified in the transaction
agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports X
agree with cancelled checks, or other form of payment,
or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained X
as required by the transaction agreements or related
mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as X
required by the transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset X
pool are made, reviewed and approved in accordance with
any conditions or requirements in the transaction
agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made X
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 X
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 X
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 X
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
V-2
SERVICING CRITERIA APPLICABLE
--------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
---------------- -------------------------------------------------------- ----------
requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained X
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 X
mortgage loans with variable rates are computed based on
the related mortgage loan documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such X
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 X
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 X
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 X
within two business days to the obligor's records
maintained by the servicer, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts X
are recognized and recorded in accordance with the
transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation
AB, is maintained as set forth in the transaction
agreements.
V-3
