STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, and CITIBANK, N.A. as Trustee TRUST AGREEMENT Dated as of January 1, 2006 LEHMAN MORTGAGE TRUST MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-1
EXECUTION
STRUCTURED
ASSET SECURITIES CORPORATION, as Depositor,
AURORA
LOAN SERVICES LLC, as Master Servicer,
and
CITIBANK,
N.A.
as
Trustee
___________________________
Dated
as
of January 1, 2006
___________________________
XXXXXX
MORTGAGE TRUST
MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES
2006-1
ARTICLE
I DEFINITIONS
|
10
|
Section
1.01. Definitions.
|
10
|
Section
1.02. Calculations Respecting Mortgage Loans.
|
51
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
51
|
Section
2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
51
|
Section
2.02. Acceptance of Trust Fund by Trustee; Review of Documentation
for
Trust Fund.
|
55
|
Section
2.03. Representations and Warranties of the Depositor.
|
57
|
Section
2.04. Discovery of Breach.
|
60
|
Section
2.05. Repurchase, Purchase or Substitution of Mortgage
Loans.
|
60
|
Section
2.06. Grant Clause.
|
62
|
ARTICLE
III THE CERTIFICATES
|
63
|
Section
3.01. The Certificates.
|
63
|
Section
3.02. Registration.
|
64
|
Section
3.03. Transfer and Exchange of Certificates.
|
65
|
Section
3.04. Cancellation of Certificates.
|
71
|
Section
3.05. Replacement of Certificates.
|
71
|
Section
3.06. Persons Deemed Owners.
|
72
|
Section
3.07. Temporary Certificates.
|
72
|
Section
3.08. Appointment of Paying Agent.
|
72
|
Section
3.09. Book-Entry Certificates.
|
73
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
75
|
Section
4.01. Collection Account.
|
75
|
Section
4.02. Application of Funds in the Collection Account.
|
77
|
Section
4.03. Reports to Certificateholders.
|
79
|
Section
4.04. Certificate Account.
|
82
|
Section
4.05. The Securities Account.
|
84
|
Section
4.06. Liability of the Securities Intermediary.
|
86
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
86
|
Section
5.01. Distributions Generally.
|
86
|
Section
5.02. Distributions from the Certificate Account.
|
87
|
Section
5.03. Allocation of Realized Losses.
|
95
|
Section
5.04. Advances by the Master Servicer and the Trustee.
|
97
|
Section
5.05. Compensating Interest Payments.
|
98
|
Section
5.06. Supplemental Interest Trust.
|
98
|
Section
5.07. The Reserve Funds.
|
99
|
i
|
|
ARTICLE
VI CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
|
100
|
Section
6.01. Duties of Trustee.
|
100
|
Section
6.02. Certain Matters Affecting the Trustee.
|
104
|
Section
6.03. Trustee Not Liable for Certificates.
|
105
|
Section
6.04. Trustee May Own Certificates.
|
106
|
Section
6.05. Eligibility Requirements for Trustee.
|
106
|
Section
6.06. Resignation and Removal of Trustee.
|
106
|
Section
6.07. Successor Trustee.
|
107
|
Section
6.08. Merger or Consolidation of Trustee.
|
108
|
Section
6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian.
|
108
|
Section
6.10. Authenticating Agents.
|
110
|
Section
6.11. Indemnification of Trustee.
|
111
|
Section
6.12. Compensation of the Trustee.
|
111
|
Section
6.13. Collection of Monies.
|
112
|
Section
6.14. Events of Default; Trustee To Act; Appointment of
Successor.
|
112
|
Section
6.15. Additional Remedies of Trustee Upon Event of
Default.
|
116
|
Section
6.16. Waiver of Defaults.
|
117
|
Section
6.17. Notification to Holders.
|
117
|
Section
6.18. Directions by Certificateholders and Duties of Trustee During
Event
of Default.
|
117
|
Section
6.19. Action Upon Certain Failures of the Master Servicer and Upon
Event
of Default.
|
118
|
Section
6.20. Preparation of Tax Returns and Reports to the
Commission.
|
118
|
Section
6.21 Compliance with Regulation AB.
|
125
|
ARTICLE
VII PURCHASE AND TERMINATION OF THE TRUST FUND
|
126
|
Section
7.01. Termination of Trust Fund Upon Repurchase or Liquidation
of All
Mortgage Loans.
|
126
|
Section
7.02. Procedure Upon Termination of Trust Fund.
|
127
|
Section
7.03. Additional Requirements for any Trust Fund Termination Events
or
Purchase of the Lower Tier REMIC 1 Uncertificated Regular
Interests.
|
129
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
131
|
Section
8.01. Limitation on Rights of Holders.
|
131
|
Section
8.02. Access to List of Holders.
|
132
|
Section
8.03. Acts of Holders of Certificates.
|
132
|
Section
8.04. Rights of Certificateholders as Holders of the Underlying
Certificates.
|
133
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER
SERVICER
|
133
|
|
|
Section
9.01. Duties of the Master Servicer.
|
133
|
Section
9.02. Master Servicer Fidelity Bond and Master Servicer Errors
and
Omissions Insurance Policy.
|
134
|
Section
9.03. Master Servicer’s Financial Statements and Related
Information.
|
134
|
Section
9.04. Power to Act; Procedures.
|
135
|
Section
9.05. Servicing Agreement Between the Master Servicer and the Servicer;
Enforcement of Servicer’s Obligations.
|
137
|
ii
Section
9.06. Collection of Taxes, Assessments and Similar Items.
|
138
|
Section
9.07. Termination of Servicing Agreement; Successor
Servicers.
|
139
|
Section
9.08. Master Servicer Liable for Enforcement.
|
139
|
Section
9.09. No Contractual Relationship Between the Servicer and Trustee
or
Depositor.
|
139
|
Section
9.10. Assumption of Servicing Agreement by Trustee.
|
139
|
Section
9.11. “Due-on-Sale” Clauses; Assumption Agreements.
|
140
|
Section
9.12. Release of Mortgage Files.
|
141
|
Section
9.13. Documents, Records and Funds in Possession of Master Servicer
To Be
Held for Trustee.
|
142
|
Section
9.14. Representations and Warranties of the Master
Servicer.
|
143
|
Section
9.15. Closing Certificate and Opinion.
|
145
|
Section
9.16. Standard Hazard and Flood Insurance Policies.
|
146
|
Section
9.17. Presentment of Claims and Collection of Proceeds.
|
146
|
Section
9.18. Maintenance of the Primary Mortgage Insurance
Policies.
|
146
|
Section
9.19. Trustee To Retain Possession of Certain Insurance Policies
and
Documents.
|
147
|
Section
9.20. Realization Upon Defaulted Mortgage Loans.
|
147
|
Section
9.21. Compensation to the Master Servicer.
|
148
|
Section
9.22. REO Property.
|
148
|
Section
9.23. [Reserved]
|
149
|
Section
9.24. Reports to the Trustee.
|
149
|
Section
9.25. Assessment of Compliance and Attestation Reports.
|
150
|
Section
9.26. Annual Statement of Compliance with Applicable Servicing
Criteria.
|
151
|
Section
9.27. Merger or Consolidation.
|
152
|
Section
9.28. Resignation of Master Servicer.
|
152
|
Section
9.29. Assignment or Delegation of Duties by the Master
Servicer.
|
153
|
Section
9.30. Limitation on Liability of the Master Servicer and
Others.
|
153
|
Section
9.31. Indemnification; Third-Party Claims.
|
154
|
Section
9.32. Special Servicing of Delinquent Mortgage Loans.
|
154
|
|
|
ARTICLE
X REMIC ADMINISTRATION
|
155
|
Section
10.01. REMIC Administration.
|
155
|
Section
10.02. Prohibited Transactions and Activities.
|
157
|
Section
10.03. Indemnification with Respect to Certain Taxes and Loss of
REMIC
Status.
|
158
|
Section
10.04. REO Property.
|
158
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
159
|
Section
11.01. Binding Nature of Agreement; Assignment.
|
159
|
Section
11.02. Entire Agreement.
|
159
|
Section
11.03. Amendment.
|
159
|
Section
11.04. Voting Rights.
|
161
|
Section
11.05. Provision of Information.
|
161
|
Section
11.06. Governing Law.
|
162
|
Section
11.07. Notices.
|
162
|
iii
Section
11.08. Severability of Provisions.
|
163
|
Section
11.09. Indulgences; No Waivers.
|
163
|
Section
11.10. Headings Not To Affect Interpretation.
|
163
|
Section
11.11. Benefits of Agreement.
|
163
|
Section
11.12. Special Notices to the Rating Agencies.
|
163
|
Section
11.13. Counterparts.
|
164
|
Section
11.14. Transfer of Servicing.
|
164
|
Section
11.15. Tax Treatment of Class P and Class X Certificates.
|
166
|
Section
11.16. Conflicts.
|
166
|
Exhibit
A
|
Forms
of Certificates
|
Exhibit
B-1
|
Form
of Initial Certification
|
Exhibit
B-2
|
Form
of Interim Certification
|
Exhibit
B-3
|
Form
of Final Certification
|
Exhibit
B-4
|
Form
of Endorsement
|
Exhibit
C
|
Request
for Release of Documents and Receipt
|
Exhibit
D-l
|
Form
of Residual Certificate Transfer Affidavit (Transferee)
|
Exhibit
D-2
|
Form
of Residual Certificate Transfer Affidavit (Transferor)
|
Exhibit
E
|
[Reserved]
|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
Exhibit
I
|
Monthly
Remittance Advice
|
Exhibit
J
|
Monthly
Electronic Data Transmission
|
Exhibit
K
|
Custodial
Agreements
|
Exhibit
L
|
[Reserved]
|
Exhibit
M
|
Forms
of Cap Agreements
|
Exhibit
N-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security pursuant to Section
3.03(h)(B)
|
Exhibit
N-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global
Security to
Restricted Global Security pursuant to Section
3.03(h)(C)
|
Exhibit
O
|
Senior
Principal Priorities
|
Exhibit
P-1
|
[Reserved]
|
Exhibit
P-2
|
[Reserved]
|
Exhibit
P-3
|
[Reserved]
|
Exhibit
Q
|
Form
of Back-Up Certification
|
Exhibit
R
|
Form
of Certification Regarding Servicing Criteria to be Addressed
in Report
on Assessment of Compliance
|
Exhibit
S
|
Transaction
Parties
|
iv
Mortgage
Loan Schedules
Schedule
A
All
Mortgage Loans (by Mortgage Pool)
Schedule
B-1 AX
Mortgage Loans (by Mortgage Pool)
Schedule
B-2 PAX
Mortgage Loans (by Mortgage Pool)
v
This
TRUST AGREEMENT, dated as of January 1, 2006 (the “Agreement”), is by and among
STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as depositor
(the “Depositor”), AURORA LOAN SERVICES LLC, as master servicer (the “Master
Servicer”), and CITIBANK, N.A., a national banking association, as trustee (the
“Trustee”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Mortgage Assets and other property for inclusion
in
the Trust Fund. On the Closing Date, the Depositor will acquire the Certificates
from the Trust Fund, as consideration for its transfer to the Trust Fund of
the
Mortgage Loans, the Underlying Certificates and the other property constituting
the Trust Fund. The Depositor has duly authorized the execution and delivery
of
this Agreement to provide for the conveyance to the Trustee of the Mortgage
Loans, the Underlying Certificates and the other property constituting the
Trust
Fund. All covenants and agreements made by the Depositor, the Master Servicer
and the Trustee herein with respect to the Mortgage Loans, the Underlying
Certificates and the other property constituting the Trust Fund are for the
benefit of the Holders from time to time of the Certificates. The Depositor
and
the Master Servicer are entering into this Agreement, and the Trustee is
accepting the Trust Fund created hereby, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
As
provided herein, the Trustee shall elect that the Trust Fund (exclusive of
amounts payable in respect of the Class P Certificates, the Basis Risk Reserve
Funds, the Cap Agreements and the Supplemental Interest Trust (collectively,
the
“Excluded Trust Assets”) be treated for federal income tax purposes as
comprising four real estate mortgage investment conduits (each a “REMIC” or, in
the alternative, REMIC I, REMIC X, REMIC II and REMIC III (the “Upper Tier
REMIC”), respectively). Each Certificate, other than the Class P, Class X, Class
LT-R or Class R Certificate and, in the case of the Class 1-A1 and Class 3-A1
Certificates, exclusive of the right to receive amounts from the Basis Risk
Reserve Funds, represents ownership of one or more regular interests in REMIC
III for purposes of the REMIC Provisions. The Class P Certificates represent
interests in the Trust Fund but are not interests in any REMIC created
hereunder.
The
Class
X Certificates represent beneficial ownership of the Basis Risk Reserve Funds
and Supplemental Interest Trust as described in note 9 of the table below for
the Upper Tier REMIC, but do not represent an interest in any REMIC created
hereunder. In addition, the Class 1-A1 and Class 3-A1 Certificates represent
the
right to receive payments in respect of any Basis Risk Shortfalls and Unpaid
Basis Risk Shortfalls from the Basis Risk Reserve Fund pursuant to Section
5.07.
The Class LT-R Certificate represents ownership of the sole class of residual
interest in REMIC I for purposes of the REMIC Provisions. The Class R
Certificate represents ownership of the sole class of residual interest in
REMIC
X, REMIC II and the Upper Tier REMIC for purposes of the REMIC Provisions.
The
Upper
Tier REMIC shall hold as its assets the several Classes of uncertificated Lower
Tier Interests in REMIC II, other than the Class R-2 Interest, and each such
Lower Tier Interest is hereby designated as a regular interest in REMIC II
for
purposes of the REMIC Provisions. The Upper Tier REMIC shall also hold as its
assets the uncertificated Lower Tier Interest in REMIC X, other than the Class
R-X Interest, and each such Lower Tier Interest is hereby designated as a
regular interest in REMIC X for purposes of the REMIC Provisions. REMIC X shall
hold as its assets the Underlying Certificates. REMIC II shall hold as its
assets the several Classes of uncertificated Lower Tier Interests in REMIC
I,
and each such Lower Tier Interest is hereby designated as a regular interest
in
REMIC I. REMIC I shall hold as its assets the property of the Trust Fund other
than the Underlying Certificates, the Lower Tier Interests in REMIC X, REMIC
I,
REMIC II and the Excluded Trust Assets.
The
startup day for each REMIC created hereby for purposes of the REMIC Provisions
is the Closing Date. In addition, for purposes of the REMIC Provisions, the
latest possible maturity date for each regular interest in each REMIC created
hereby is the Latest Possible Maturity Date.
REMIC
I:
REMIC
I
shall issue one uncertificated interest in respect of each Mortgage Loan held
by
the Trust on the Closing Date, each of which is hereby designated as a regular
interest in REMIC I (the “REMIC I Regular Interests”). Each REMIC I Regular
Interest shall have an initial principal balance equal to the Scheduled
Principal Balance of the Mortgage Loan to which it relates and shall bear
interest at a per annum rate equal to the Net Mortgage Rate of such Mortgage
Loan. In the event a Qualified Substitute Mortgage Loan is substituted for
such
Mortgage Loan (the “Original Mortgage Loan”), no amount of interest payable on
such Qualified Substitute Mortgage Loan shall be distributed on such REMIC
I
Regular Interest at a rate in excess of the Net Mortgage Rate of the Original
Mortgage Loan.
On
each
Distribution Date the Trustee shall distribute the interest portion of the
Available Distribution Amount (net of expenses described in the preceding
paragraph) with respect to each of the Lower Tier Interests in REMIC I based
on
the above-described interest rates.
On
each
Distribution Date, the Trustee shall distribute the principal portion of the
Available Distribution Amount among the Lower Tier Interests in REMIC I in
accordance with the amount of the principal attributable to the Mortgage Loan
corresponding to each such Lower Tier Interests in REMIC I. All losses on the
Mortgage Loans shall be allocated among the Lower Tier Interests in REMIC I
in
the same manner that principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Penalty Amounts
collected during the preceding Prepayment Period, in the case of Principal
Prepayments in full, or during the related Due Period, in the case of Principal
Prepayments in part, to the Lower Tier Interest in REMIC I corresponding to
the
Mortgage Loan with respect to which such amounts were received.
On
each
Distribution Date, the Trustee shall first pay or charge as an expense of REMIC
I all expenses of the Trust Fund for such Distribution Date.
2
REMIC
X:
REMIC
X
shall issue one uncertificated interest in respect of the Underlying
Certificates held by the Trust on the Closing Date, which is hereby designated
as a regular interest in REMIC X (the “REMIC X Regular Interest”). The REMIC X
Regular Interest shall have an initial principal balance equal to the principal
amount of the Underlying Certificates and shall bear interest at a per annum
rate equal to the Interest Rate of the Underlying Certificates.
On
each
Distribution Date the Trustee shall distribute the interest portion of the
Available Distribution Amount for Pool 4 with respect to the Lower Tier Interest
in REMIC X based on the above-described interest rate.
On
each
Distribution Date, the Trustee shall distribute the principal portion of the
Available Distribution Amount for Pool 4 to the Lower Tier Interest in REMIC
X.
REMIC
II
REMIC
II
shall hold as assets the REMIC I Regular Interests. REMIC II shall issue the
several classes of uncertificated REMIC II Interests set out below. Each such
REMIC II Interest, other than the Class R-2 Interest, is hereby designated
as a
regular interest in REMIC II. The following table specifies the Class
designation, interest rate, and principal amount for each Class of REMIC II
Interests:
REMIC
II
Class
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of Certificates
|
|
LTII-1-A1
|
5.50%
|
$
124,897,000.00
|
Class
1-A1, 1-A2
|
|
LTII-1-A3
|
5.50%
|
$
41,633,000.00
|
Class
1-A3
|
|
LTII-1-A4
|
5.50%
|
$
4,973,000.00
|
Class
1-A4
|
|
LTII-1-A5
|
5.50%
|
$
39,765,000.00
|
Class
1-A5
|
|
LTII-1-A6
|
5.50%
|
$
3,111,000.00
|
Class
1-A6
|
|
LTII-2-A1
|
(1)
|
$
45,293,000.00
|
Class
2-A1
|
|
LTII-2-A2
|
(1)
|
$
5,033,000.00
|
Class
2-A2
|
|
LTII-3-A1
|
5.50%
|
$
123,712,000.00
|
Class
3-A1, 3-A2
|
|
LTII-3-A3
|
5.50%
|
$
41,238,000.00
|
Class
3-A3
|
|
LTII-3-A4
|
5.50%
|
$
5,101,000.00
|
Class
3-A4
|
|
LTII-3-A5
|
5.50%
|
$
27,442,000.00
|
Class
3-A5
|
|
LTII-3-A6
|
5.50%
|
$
9,886,000.00
|
Class
3-A6
|
|
LTII-AP
|
0.00%
|
$
3,181,606.00
|
Class
AP
|
|
LTII-AX
|
(2)
|
(2)
|
Class
AX
|
|
LTII-PAX
|
(3)
|
(3)
|
Class
PAX
|
|
LTII-1-AR
|
5.75%
|
$
100.00
|
Class
R
|
|
LTII-3B1
|
5.50%
|
$
9,029,000.00
|
Class
3B1
|
|
LTII-3B2
|
5.50%
|
$
1,560,000.00
|
Class
3B2
|
|
LTII-3B3
|
5.50%
|
$
891,000.00
|
Class
3B3
|
LTII-3B4
|
5.50%
|
$
780,000.00
|
Class
3B4
|
3
REMIC
II
Class
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of
Certificates
|
LTII-3B5
|
5.50%
|
$
557,000.00
|
Class
3B5
|
|
LTII-3B6
|
5.50%
|
$
448,451.00
|
Class
3B6
|
|
LTII-1-GSA
|
(4)
|
$
149,654.32
|
N/A
|
|
LTII-1-Pool
|
(4)
|
$
14,815,778.03
|
N/A
|
|
LTII-2-GSA
|
(5)
|
$
34,988.13
|
N/A
|
|
LTII-2-Pool
|
(5)
|
$
3,463,824.38
|
N/A
|
|
R-2
|
(6)
|
(6)
|
(6)
|
(1) |
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Lower Tier Interests is a per annum
rate
equal to the
weighted average Net Mortgage Rate of the Mortgage Loans in Pool
2.
|
(2) |
The
Class LTII-AX Interest does not have a principal balance and is entitled
to receive on each Distribution Date a specified portion of the interest
payable on the AX Mortgage Loans. Specifically, for each Accrual
Period,
the Class LTII-AX Interest is entitled to interest accruals on the
AX
Mortgage Loans in Pool 1 and Pool 3 at a per annum rate determined
for
each Mortgage Pool equal to the excess of (i) the weighted average
of the
Net Mortgage Rates of the AX Mortgage Loans in the Mortgage Pool
over (ii)
the Designated Rate for such Mortgage Pool.
|
(3) |
The
Class LTII-PAX Interest is entitled to receive on each Distribution
Date a
specified portion of the interest payable on the PAX Mortgage Loans.
Specifically, for each Accrual Period, the Class LTII-PAX Interest
is
entitled to interest accruals on the PAX Mortgage Loans in Pool 1
and Pool
3 at a per annum rate determined for each Mortgage Pool equal to
the
excess of (i) the weighted average of the Net Mortgage Rates of the
PAX
Mortgage Loans in the Mortgage Pool over (ii) the Designated Rate
for such
Mortgage Pool.
|
(4) |
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for the LTII-1-Pool Interest and the LTII-1-GSA Interest
will be a per annum rate equal to the Designated Rate for Pool
1.
|
(5) |
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for the LTII-2-Pool Interest and the LTII-2-GSA Interest
will be a per annum rate equal to the Designated Rate for Pool
2.
|
(6) |
The
Class R-2 Interest does not have a principal balance and does not
bear
interest.
|
On
each
Distribution Date, the Available Distribution Amount distributable as interest
shall be distributed as interest with respect to the REMIC II Interests based
on
the interest rates described above. On each Distribution Date, Net Prepayment
Shortfalls and Excess Losses sustained with respect to any Mortgage Pool are
to
be allocated among the Classes of REMIC II Interests related to such Mortgage
Pool based on the relative amounts of interest otherwise accrued for the related
Accrual Period on each such REMIC II Interest.
On
each
Distribution Date, the Available Distribution Amount distributable as principal
shall be distributed as principal on REMIC II Interests as follows:
(1) |
First,
to the Class LTII-AP Interests until its balance equals that of the
Class
AP Certificate immediately after the Distribution
Date;
|
4
(2) |
Second,
from the remaining Available Distribution Amount for Pool 1, to
the Class LTII-1-GSA Interest until its principal balance equals
one
percent of the Group Subordinate Amount for Pool 1 after such Distribution
Date;
|
(3) |
Third,
from the remaining Available Distribution Amount for Pool 2 to
the Class LTII-2-GSA Interest until its principal balance equals
one
percent of the Group Subordinate Amount for Pool 2 after such Distribution
Date;
|
(4) |
Fourth,
to
the
Class LTII-1-GSA and Class LTII-2-GSA Interests, from the remaining
Available Distribution Amount for Pool 1 and Pool 2, the minimum
amount
necessary to cause the ratio of the principal balance of each such
REMIC
II Interests to the principal balances of the other such REMIC II
Interest
to equal the ratio of the Group Subordinate Amount related to such
REMIC
II Interest to the Group Subordinate Amounts related to the other
such
REMIC II Interest immediately after such Distribution
Date;
|
(5) |
Fifth,
from the remaining Available Distribution Amount from each of the
Mortgage
Pools, concurrently, as follows -
|
(a) To
the
Class LTII-1-Pool until the sum of (a) its principal balance and (b) the
principal balance of the LTII-1-GSA, after taking into account distributions
made pursuant to priorities (2) and (4) above, equals the Group Subordinate
Amount for Pool 1 immediately after such Distribution Date; and
(b) To
the
Class LTII-2-Pool until the sum of (a) its principal balance and (b) the
principal balance of the LTII-2-GSA, after taking into account distributions
made pursuant to priorities (3) and (4) above, equals the Group Subordinate
Amount for Pool 2 immediately after such Distribution Date;
(6) |
Finally,
from the remaining Available Distribution Amount from each of the
Mortgage
Pools to each REMIC II Interest for which there is a Corresponding
Class
of Certificates (other than the Class LTII-AP, Class LTII-AX, and
Class
LTII-PAX Interests) until the principal balance of such REMIC II
Interest
equals the Class Principal Amount of the Corresponding Class of
Certificates immediately after such Distribution
Date.
|
For
each
Distribution Date, Realized Losses, other than Excess Losses, shall be allocated
among the REMIC II Interests in the same manner that principal is allocated
among the REMIC II Interests.
REMIC
III
REMIC
III shall hold as assets the several classes of uncertificated REMIC II
Interests, other than the Class R-2 Interest. REMIC
III
shall also hold as its assets the uncertificated Lower Tier Interest in REMIC
X,
other than the Class R-X Interest.
5
The
following table specifies the Class designation, Certificate Interest Rate,
initial Class Principal Amount (or initial Class Notional Amount) and minimum
denomination (by dollar amount or Percentage Interest) for each Class of
Certificates (each of which, other than the Class LT-R, Class R, Class X and
Class P Certificates and in the case of the Class 1-A1 and Class 3-A1
Certificates, exclusive of the right to receive payments from the Basis Risk
Reserve Fund, is hereby designated as one or more regular interests in REMIC
III) constituting the interests in the Trust Fund created
hereunder.
6
Class
Designation
|
Certificate
Interest
Rate
|
Initial
Class Principal
(or
Notional) Amount
|
Minimum
Denomination
or
Percentage Interest
|
|
Class
1-A1
|
Variable(1)
|
$
124,897,000
|
$
25,000.00
|
|
Class
1-A2
|
Variable(2)
|
$
124,897,000
|
$
25,000.00
|
|
Class
1-A3
|
5.50%
|
$
41,633,000
|
$
25,000.00
|
|
Class
1-A4
|
5.50%
|
$
4,973,000
|
$
25,000.00
|
|
Class
1-A5
|
5.50%
|
$
39,765,000
|
$
25,000.00
|
|
Class
1-A6
|
5.50%
|
$
3,111,000
|
$
25,000.00
|
|
Class
2-A1
|
(3)
|
$
45,293,000
|
$
25,000.00
|
|
Class
2-A2
|
(3)
|
$
5,033,000
|
$
25,000.00
|
|
Class
3-A1
|
Variable(4)
|
$
123,712,000
|
$
25,000.00
|
|
Class
3-A2
|
Variable(5)
|
$
123,712,000
|
$
25,000.00
|
|
Class
3-A3
|
5.50%
|
$
41,238,000
|
$
25,000.00
|
|
Class
3-A4
|
5.50%
|
$
5,101,000
|
$
25,000.00
|
|
Class
3-A5
|
5.50%
|
$
27,442,000
|
$
25,000.00
|
|
Class
3-A6
|
5.50%
|
$
9,886,000
|
$
25,000.00
|
|
Class
4-A1
|
5.50%
|
$
65,544,025
|
$
25,000.00
|
|
Class
4-A2
|
5.50%
|
$
3,479,803
|
$
25,000.00
|
|
Class
AP
|
0.00%
|
$
3,181,606
|
$
250,000.00
|
|
Class
AX
|
5.50%
|
$
21,838,183(6)
|
$
500,000.00
|
|
Class
PAX
|
5.50%
|
$
13,480,711(7)
|
$
500,000.00
|
|
Class
B1(1-2)
|
Variable(8)
|
$
7,953,000
|
$
100,000.00
|
|
Class
B2(1-2)
|
Variable(8)
|
$
3,691,000
|
$
100,000.00
|
|
Class
B3(1-2)
|
Variable(8)
|
$
1,987,000
|
$
100,000.00
|
|
Class
B4(1-2)
|
Variable(8)
|
$
851,000
|
$
100,000.00
|
|
Class
B5(1-2)
|
Variable(8)
|
$
1,278,000
|
$
100,000.00
|
|
Class
B6(1-2)
|
Variable(8)
|
$
1,562,000
|
$
100,000.00
|
|
Class
B7(1-2)
|
Variable(8)
|
$
1,142,245
|
$
100,000.00
|
|
Class
3B1
|
5.50%
|
$
9,029,000
|
$
100,000.00
|
|
Class
3B2
|
5.50%
|
$
1,560,000
|
$
100,000.00
|
|
Class
3B3
|
5.50%
|
$
891,000
|
$
100,000.00
|
|
Class
3B4
|
5.50%
|
$
780,000
|
$
100,000.00
|
|
Class
3B5
|
5.50%
|
$
557,000
|
$
100,000.00
|
|
Class
3B6
|
5.50%
|
$
448,451
|
$
100,000.00
|
|
Class
X
|
(9)
|
(9)
|
(9)
|
|
Class
LT-R
|
(10)
|
(10)
|
(10)
|
|
Class
R
|
5.50%
|
$
100.00
|
100%(11)
|
|
Class
P
|
(12)
|
(12)
|
100%
|
__________________
(1) |
The
Certificate Interest Rate for the Class 1-A1 Certificates for the
first
Distribution Date (and related Accrual Period) will be an annual
rate
equal to 5.150%, and thereafter, for any Distribution Date (and related
Accrual Period) will be an annual rate equal to the lesser of (i)
LIBOR
plus
0.75% and (ii) 5.50%.
|
(2) |
The
Certificate Interest Rate for the Class 1-A2 Certificates for the
first
Distribution Date (and related Accrual Period) will be an annual
rate
equal to 0.350%, and thereafter, for any Distribution Date (and related
Accrual Period) will be an annual rate equal to 4.750% minus
LIBOR, subject to a minimum rate of 0.00%.
|
7
(3) |
The
Certificate Interest Rate for the Class 2-A1 and the Class 2-A2
Certificates for any Distribution Date (and related Accrual Period)
will
be equal to the weighted average Net Mortgage Rate of the Mortgage
Loans
in Pool 2 at the beginning of the related Due
Period.
|
(4) |
The
Certificate Interest Rate for the Class 3-A1 Certificates for the
first
Distribution Date (and related Accrual Period) will be an annual
rate
equal to 5.150%, and thereafter, for any Distribution Date (and related
Accrual Period) will be an annual rate equal to the lesser of (i)
LIBOR
plus
0.75% and (ii) 5.50%.
|
(5) |
The
Certificate Interest Rate for the Class 3-A2 Certificates for the
first
Distribution Date (and related Accrual Period) will be an annual
rate
equal to 0.350%, and thereafter, for any Distribution Date (and related
Accrual Period) will be an annual rate equal to 4.750% minus
LIBOR, subject to a minimum rate of
0.00%.
|
(6) |
The
Class Notional Amount of the Class AX Certificates for the first
Distribution Date will be the amount set forth in the definition
of
“Component” and for any Distribution Date thereafter will be equal to the
sum of the Component Notional Amounts of the AX(1) and AX(3) Components
for such date. The Component Notional Amount of the AX(1) Component
for
the first Distribution Date will be the amount set forth in the definition
of “Component” and for any Distribution Date thereafter will be equal to
the product of (1) a fraction, the numerator of which is the weighted
average of the Net Mortgage Rates of the AX(1) Mortgage Loans at
the
beginning of the related Due Period minus
5.50, and the denominator of which is 5.50%, and (2) the total Scheduled
Principal Balance of the AX(1) Mortgage Loans as of the first day
of the
related Due Period. The Component Notional Amount of the AX(3) Component
for the first Distribution Date will be the amount set forth in the
definition of “Component” and for any Distribution Date thereafter will be
equal to the product of (1) a fraction, the numerator of which is
the
weighted average of the Net Mortgage Rates of the AX(3) Mortgage
Loans at
the beginning of the related Due Period minus
5.50%, and the denominator of which is 5.50%, and (2) the total Scheduled
Principal Balance of the AX(3) Mortgage Loans as of the first day
of the
related Due Period. The initial Class Notional Amount of the Class
AX
Certificates is $21,838,183.
|
(7) |
The
Class Notional Amount of the Class PAX Certificates for any Distribution
Date will be equal to the sum of the Component Notional Amounts of
the
PAX(1) and PAX(3) Components for such date. The Component Notional
Amount
of the PAX(1) Component for the first Distribution Date will be the
amount
set forth in the definition of “Component” and for any Distribution Date
thereafter will be equal to the product of (1) a fraction, the numerator
of which is the weighted average of the Net Mortgage Rates of the
PAX(1)
Mortgage Loans at the beginning of the related Due Period minus
5.50%, and the denominator of which is 5.50%, and (2) the total Scheduled
Principal Balance of the PAX(1) Mortgage Loans as of the first day
of the
related Due Period. The Component Notional Amount of the PAX(3) Component
for the first Distribution Date will be the amount set forth in the
definition of “Component” and for any Distribution Date thereafter will be
equal to the product of (1) a fraction, the numerator of which is
the
weighted average of the Net Mortgage Rates of the PAX(3) Mortgage
Loans at
the beginning of the related Due Period minus
5.50%, and the denominator of which is 5.50%, and (2) the total Scheduled
Principal Balance of the PAX(3) Mortgage Loans as of the first day
of the
related Due Period. The initial Class Notional Amount of the Class
PAX
Certificates is $13,480,711.
|
(8) |
The
Certificate Interest Rate for the Class B1(1-2), Class B2(1-2), Class
B3(1-2), Class B4(1-2), Class B5(1-2), Class B6(1-2) and Class B7(1-2)
for
any Distribution Date (and related Accrual Period) will be equal
to the
weighted average of (i) 5.50% and (ii) the weighted average Net Mortgage
Rate of the Mortgage Loans in Pool 2 at the beginning of the related
Due
Period, weighted on the basis of the Group Subordinate Amount for
Pool 1
and Pool 2, respectively.
|
(9) |
The
Class X Certificate will be issued without a Class Principal Amount
and
will not bear interest at a stated rate. The Class X Certificate
will be
issued as a single certificate evidencing the entire Percentage Interest
in such Class. The Class X Certificate will be entitled to any amounts
remaining in the Basis Risk Reserve Funds pursuant to Section 5.07.
The
Class X Certificate does not represent an interest in any REMIC created
hereby.
|
(10) |
The
Class LT-R Certificate will be issued without a Class Principal Amount
and
will not bear interest at a stated rate. The Class LT-R represents
ownership of the residual interest in REMIC I. The Class LT-R Certificate
will be issued as a single Certificate evidencing the entire Percentage
Interest in such Class.
|
8
(11) |
The
Class R Certificate represents ownership of the residual interest
in each
of REMIC X, REMIC II and REMIC III.
|
(12) |
The
Class P Certificates do not have a Class Principal Amount, Class
Notional
Amount or a Certificate Interest Rate but shall be entitled on each
Distribution Date to the Class P Distributable Amount for such
Distribution Date. The Class P Certificates do not represent an interest
in any REMIC created hereby.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$506,995,402.55. As of the Reference Date, the Underlying Certificates had
an
aggregate principal amount of $69,023,828.00.
For
purposes hereof, each Asset Pool constitutes a fully separate and distinct
sub-trust.
9
ARTICLE
I
DEFINITIONS
Section 1.01. |
Definitions.
|
The
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
10-K
Filing Deadline:
As
defined in Section 6.20(e)(i).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary
mortgage servicing practices of prudent mortgage servicing institutions that
service or master service mortgage loans of the same type and quality as such
Mortgage Loan in the jurisdiction where the related Mortgaged Property is
located, to the extent applicable to the Trustee or the Master Servicer or
(y)
as provided in the Servicing Agreement, to the extent applicable to the
Servicer.
Accountant:
A
person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Account
Property:
All
amounts and investments held from time to time in a Securities Account (whether
in the form of deposit accounts, physical property, book-entry securities,
uncertificated securities, securities entitlements, investment property or
otherwise), and all proceeds of the foregoing.
Accretion
Termination Date:
With
respect to the Class 1-A4 Certificates, the earlier of (x) the Group 1-2 Credit
Support Depletion Date and (y) the first Distribution Date on which the Class
Principal Amounts of the Class 1-A1 and Class 1-A3 Certificates have been
reduced to zero. With respect to the Class 3-A4 Certificates, the earlier of
(x)
the Group 3 Credit Support Depletion Date and (y) the first Distribution Date
on
which the Class Principal Amounts of the Class 3-A1 and Class 3-A3 Certificates
have been reduced to zero.
Accrual
Amount:
As to
any Class of Accrual Certificates and each Distribution Date through the
Accretion Termination Date, the sum of amounts allocable to such Class pursuant
to Section 5.02 (a)(i) and (ii) on such Distribution Date. As to any Class
of
Accrual Certificates and each Distribution Date after the Accretion Termination
Date, zero.
Accrual
Certificate:
Any
Class 1-A4 Certificate or Class 3-A4 Certificate.
Accrual
Component:
None.
Accrual
Period:
With
respect to any Distribution Date and any Class of Certificates (other than
the
LIBOR Certificates) or Class of Lower Tier Interests, the calendar month
immediately preceding the month in which such Distribution Date occurs. With
respect to any Distribution Date and the LIBOR Certificates, the period
beginning on the Distribution Date in the calendar month preceding the month
in
which such Distribution Date occurs (or on January 25, 2006, in the case of
the
first Accrual Period) and ending on the day immediately preceding such
Distribution Date; provided that each Accrual Period will be treated as being
a
30-day period.
10
Accrued
Certificate Interest:
As to
any Class of Certificates (other than the Class P Certificates and any Component
Certificates) and each Component (other than Components relating to the Class
AP
Certificates) and any Distribution Date, the product of (i) the Certificate
Interest Rate for such Class of Certificates (or the Component Interest Rate
for
such Component) divided by 12 and (ii) the Class Principal Amount or Class
Notional Amount of such Class of Certificates (or Component Notional Amount
or
Component Principal Amount of such Component) as of the last day of the related
Accrual Period, as reduced by, such Class’s (other than a Class of Group 4
Certificates) or Component’s share of (a) the interest portion of any Excess
Losses for the related Mortgage Pool for such Distribution Date and (b) the
interest portion of any Relief Act Reductions for the related Mortgage Pool
for
such Distribution Date. Any such Excess Losses or Relief Act Reductions relating
to Pool 3 shall be allocable among the interest bearing Senior Certificates
(or
Components) for Pool 3 and the Class 3B1, Class 3B2, Class 3B3, Class 3B4,
Class
3B5 and Class 3B6 Certificates pro
rata
based on
the Accrued Certificate Interest otherwise distributable thereon. Any such
Excess Losses or Relief Act Reductions relating to Pool 1 or Pool 2 shall be
allocable among the interest bearing Senior Certificates (or Components) for
the
related Mortgage Pool and the Class B1(1-2), Class B2(1-2), Class B3(1-2),
Class
B4(1-2), Class B5(1-2), Class B6(1-2) and Class B7(1-2) Certificates
pro
rata
based
(x) in the case of such Senior Certificates or Components, on the Accrued
Certificate Interest otherwise distributable thereon and (y) in the case of
the
Class B1(1-2), Class B2(1-2), Class B3(1-2), Class B4(1-2), Class B5(1-2),
Class
B6(1-2) and Class B7(1-2) Certificates, on their respective Apportioned
Principal Balances.
As
to any
Class of Component Certificates (other than the Class AP Certificates), on
any
Distribution Date, the aggregate of Accrued Certificate Interest for the related
Accrual Period on the Components of such Class for such date.
Interest
shall accrue on the basis of a 360-day year comprising twelve 30-day
months.
Act:
As
defined in Section 8.03(a).
Additional
Collateral:
None.
Additional
Servicer:
Each
affiliate of the Servicer that Services any of the Mortgage Loans and each
Person who is not an affiliate of the Servicer, who Services 10% or more of
the
Mortgage Loans.
Advance:
An
advance of the aggregate of payments of principal and interest (net of the
applicable Servicing Fee) on one or more Mortgage Loans that were due on the
Due
Date in the related Due Period and not received as of the close of business
on
the related Determination Date, required to be made by or on behalf of the
Master Servicer and the Servicer (or by the Trustee, as successor Master
Servicer) pursuant to Section 5.04.
Adverse
REMIC Event:
As
defined in Section 10.01(f).
11
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Aggregate
Certificate Insurance Premium:
None.
Aggregate
Principal Balance:
The
aggregate of the Scheduled Principal Balances of all Mortgage Loans at any
date
of determination.
Aggregate
Subordinate Percentage:
With
respect to any Distribution Date, the sum of the Class Principal Amounts of
the
Subordinate Certificates immediately prior to such date divided by the sum
of
the Non-AP Pool Balance for each Mortgage Pool for the immediately preceding
Distribution Date.
Aggregate
Voting Interests:
The
aggregate of the Voting Interests of all the Certificates under this
Agreement.
Agreement:
This
Trust Agreement and all amendments and supplements hereto.
AP(1)
Component Deferred Amount:
With
respect to any Distribution Date through the Group 1-2 Credit Support Depletion
Date, the total of all amounts allocable to the AP(1) Component on such
Distribution Date in respect of Realized Losses (other than Excess Losses)
on
the Pool 1 Mortgage Loans and all amounts previously allocated in respect of
Realized Losses to the AP(1) Component and not distributed on prior Distribution
Dates.
AP(3)
Component Deferred Amount:
With
respect to any Distribution Date through the Group 3 Credit Support Depletion
Date, the total of all amounts allocable to the AP(3) Component on such
Distribution Date in respect of Realized Losses (other than Excess Losses)
on
the Pool 3 Mortgage Loans and all amounts previously allocated in respect of
Realized Losses to the AP(3) Component and not distributed on prior Distribution
Dates.
AP
Deferred Amount:
Any of
the AP(1) Component Deferred Amount or the AP(3) Component Deferred
Amount.
AP
Percentage:
As to
any Discount Mortgage Loan, the percentage equivalent of a fraction, the
numerator of which is the Designated Rate of the Mortgage Pool containing such
Discount Mortgage Loan minus
the Net
Mortgage Rate of such Discount Mortgage Loan and the denominator of which is
the
Designated Rate. As to any Non-Discount Mortgage Loan, 0%.
AP
Principal Distribution Amount:
For any
Distribution Date and for each of Pool 1 and Pool 3, the sum of the following
amounts:
(i) the
applicable AP Percentage of the principal portion of each Scheduled Payment
(without giving effect to any Debt Service Reduction occurring prior to the
Bankruptcy Coverage Termination Date) on each Mortgage Loan in the related
Mortgage Pool due during the related Due Period;
12
(ii) the
applicable AP Percentage of each of the following amounts: (1) each Principal
Prepayment collected on a Mortgage Loan in the related Mortgage Pool during
the
applicable Prepayment Period, (2) each other unscheduled collection, including
any Subsequent Recovery, Insurance Proceeds and Net Liquidation Proceeds (other
than with respect to any Mortgage Loan in the related Mortgage Pool that was
finally liquidated during the applicable Prepayment Period), representing or
allocable to recoveries of principal of such Mortgage Loan in the related
Mortgage Pool received during the applicable Prepayment Period and (3) the
principal portion of all proceeds of the purchase of any Mortgage Loan in the
related Mortgage Pool (or, in the case of a permitted substitution, amounts
representing a principal adjustment) actually received by the Trustee with
respect to the applicable Prepayment Period;
(iii) with
respect to unscheduled recoveries allocable to principal of any Mortgage Loan
in
the related Mortgage Pool that was finally liquidated during the related
Prepayment Period, the applicable AP Percentage of the related net Liquidation
Proceeds allocable to principal; and
(iv) any
amounts described in clauses (i) through (iii) for any previous Distribution
Date that remain unpaid.
Apportioned
Principal Balance:
As to
any Class B1(1-2), Class B2(1-2), Class B3(1-2), Class B4(1-2), Class B5(1-2),
Class B6(1-2) or Class B7(1-2) Certificates and any Distribution Date, the
Class
Principal Amount of such Class immediately prior to such Distribution Date
multiplied by a fraction, the numerator of which is the applicable Group
Subordinate Amount for such date and the denominator of which is the Group
1-2
Subordinate Amount for such date.
Appraised
Value:
With
respect to any Mortgage Loan, the amount set forth in an appraisal made in
connection with the origination of such Mortgage Loan as the value of the
related Mortgaged Property.
Asset
Pool:
Pool 1,
Pool 2, Pool 3 and Pool 4.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument, in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Trustee, which assignment, notice of transfer or equivalent instrument may
be in
the form of one or more blanket assignments covering the Mortgage Loans secured
by Mortgaged Properties located in the same jurisdiction, if permitted by law;
provided,
however,
that
the Trustee shall not be responsible for determining whether any such assignment
is in recordable form.
Aurora:
Aurora
Loan Services LLC or its successor in interest, in its capacity as the
Servicer.
Authenticating
Agent:
Any
authenticating agent appointed by the Trustee pursuant to Section
6.10.
13
Authorized
Officer:
Any
Person who may execute an Officer’s Certificate, as specified in the definition
thereof, on behalf of the Depositor.
Available
Distribution Amount:
(a) As
to each Asset Pool (other than Pool 4) on any Distribution Date, the sum of
the
following amounts:
(i) the
total
amount of all cash received by the Master Servicer through the Remittance Date
applicable to the Servicer and deposited with the Trustee by the Master Servicer
by the Deposit Date for such Distribution Date on the Mortgage Loans of such
Mortgage Pool (including proceeds of any Insurance Policy and any other credit
support relating to such Mortgage Loans and including any Subsequent Recovery
or
recoveries through liquidation of any REO Property), plus
all
Advances made by the Master Servicer or the Servicer (or the Trustee in its
capacity as successor master servicer) for such Distribution Date, any
Compensating Interest Payment for such date and Mortgage Pool and any amounts
paid by the Servicer in respect of Prepayment Interest Shortfalls in respect
of
the related Mortgage Loans for such date, any proceeds of any purchase of a
related Mortgage Loan and any Prepayment Penalty Amounts with respect to the
related Mortgage Loans for which the Mortgage Loan Seller own the servicing
rights, but not including:
(A) all
amounts distributed pursuant to Section 5.02 on prior Distribution
Dates;
(B) all
Scheduled Payments of principal and interest collected but due on a date
subsequent to the related Due Period;
(C) all
Principal Prepayments received or identified by the Servicer after the
applicable Prepayment Period (together with any interest payments received
with
such prepayments to the extent that they represent the payment of interest
accrued on the related Mortgage Loans for the period subsequent to the
applicable Prepayment Period);
(D) any
other
unscheduled collection, including Net Liquidation Proceeds and Insurance
Proceeds, received by the Master Servicer after the applicable Prepayment
Period;
(E) all
fees
and amounts due or reimbursable to the Master Servicer, the Trustee, a Custodian
or the Servicer pursuant to the terms of this Agreement, a Custodial Agreement
or the Servicing Agreement;
(F) any
Prepayment Penalty Amounts with respect to Mortgage Loans for which the Mortgage
Loan Seller does not hold the servicing rights;
(G) any
Prepayment Interest Excess; and
(H) such
portion of each payment in respect of interest representing Retained Interest,
if any; and
14
(ii) any
other
payment made by the Master Servicer, the Servicer, the Mortgage Loan Seller,
the
Depositor, or any other Person with respect to such Distribution Date (including
the Purchase Price with respect to any Mortgage Loan purchased by the Mortgage
Loan Seller, the Depositor or any other Person and any related Substitution
Amount).
(b)
As to
Pool 4 on any Distribution Date, all amounts received by the Trustee with
respect to the Underlying Certificates on
the related Underlying Distribution Date minus
all fees
and other amounts due or reimbursable to the Master Servicer or the Trustee
pursuant to the terms of this Agreement.
Average
Rate:
With
respect to each Distribution Date and each Group 1-2 Subordinate Certificate,
a
per annum rate equal to the weighted average of (1) the Designated Rate
applicable to Pool 1 and (2) the Pool 2 Net WAC Rate, expressed as a percentage
and weighted on the basis of the Group Subordinate Amount for Pool 1 and Pool
2,
respectively.
AX
Mortgage Loans:
The
Non-Discount Mortgage Loans listed on Schedule B-1 hereto.
AX(1)
Mortgage Loans:
The AX
Mortgage Loans identified on Schedule B-1 as being included in Pool
1.
AX(3)
Mortgage Loans:
The AX
Mortgage Loans identified on Schedule B-1 as being included in Pool
3.
Back-Up
Certification:
As
defined in Section 6.20(e)(iii).
Balloon
Mortgage Loan:
None.
Balloon
Payment:
Not
applicable.
Bankruptcy:
With
respect to any Person, the making of an assignment for the benefit of creditors,
the filing of a voluntary petition in bankruptcy, adjudication as a bankrupt
or
insolvent, the entry of an order for relief in a bankruptcy or insolvency
proceeding, the seeking of reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief, or seeking, consenting
to or acquiescing in the appointment of a trustee, receiver or liquidator,
dissolution, or termination, as the case may be, of such Person pursuant to
the
provisions of either the Bankruptcy Code or any similar state law.
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
Bankruptcy
Coverage Termination Date:
With
respect to any Mortgage Pool, the Distribution Date on which the Bankruptcy
Loss
Limit has been reduced to zero (or less than zero).
Bankruptcy
Loss Limit:
As of
the Cut-off Date and the Pool 1-2 Mortgage Loans, $314,314, which amount shall
be reduced from time to time by the amount of Bankruptcy Losses allocated to
the
Certificates related to Pool 1 and Pool 2; and as of the Cut-off Date and the
Pool 3 Mortgage Loans, $314,314, which amount shall be reduced from time to
time
by the amount of Bankruptcy Losses allocated to the Certificates related to
Pool
3.
15
Bankruptcy
Losses:
With
respect to the Mortgage Loans in the related Mortgage Pool, losses that are
incurred as a result of Deficient Valuations and any Debt Service
Reductions.
Basis
Risk Reserve Fund:
Any of
the Class 1-A1 Reserve Fund or the Class 3-A1 Reserve Fund.
Basis
Risk Shortfall:
With
respect to any Distribution Date and the Class 1-A1 or Class 3-A1 Certificates,
the excess, if any, of the amount of interest such class of Certificates would
have been entitled to receive if the Certificate Interest Rate for such Class
was calculated without regard to its related per annum maximum rate (5.50%
with
respect to the Class 1-A1 and Class 3-A1 Certificates), over the actual amount
of interest such Class is entitled to receive for such Distribution
Date.
Blanket
Mortgage:
The
mortgage or mortgages encumbering a Cooperative Property.
Book-Entry
Certificates:
Beneficial interests in Certificates designated as “Book-Entry Certificates” in
this Agreement, ownership and transfers of which shall be evidenced or made
through book entries by a Clearing Agency as described in Section 3.09;
provided,
that
after the occurrence of a condition whereupon book-entry registration and
transfer are no longer permitted and Definitive Certificates are to be issued
to
Certificate Owners, such Book-Entry Certificates shall no longer be “Book-Entry
Certificates.” As of the Closing Date, all of the Classes of Certificates listed
in the third table of the Preliminary Statement, other than the Class P, Class
X, Class R and Class LT-R Certificates, constitute Book-Entry Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in Colorado or New York, or, if other than New York, the city in which the
Corporate Trust Office of the Trustee is located, or (iii) with respect to
any
Remittance Date or any Servicer reporting date, the States specified in the
definition of “Business Day” in the Servicing Agreement, are authorized or
obligated by law or executive order to be closed.
Cap
Agreements:
Collectively, the Class 1-A1 and Class 3-A1 Cap Agreements.
Cap
Counterparty:
In the case of each Cap Agreement, Xxxxxx Brothers Special Financing
Inc.
Certificate:
Any one
of the certificates signed and countersigned by the Trustee in substantially
one
of the forms attached hereto as Exhibit A.
Certificate
Account:
The
account maintained by the Trustee in accordance with the provisions of Section
4.04.
Certificate
Insurance Premium:
None.
Certificate
Insurer:
None.
16
Certificate
Insurer Default:
Not
applicable.
Certificate
Interest Rate:
With
respect to each Class of Certificates (other than the Class AP, Class X, Class
P
and Class LT-R Certificates), the applicable per annum rate specified or
determined as provided in the Preliminary Statement hereto.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the owner of such
Book-Entry Certificate, as reflected on the books of the Clearing Agency, or
on
the books of a Person maintaining an account with such Clearing Agency (directly
or as an indirect participant, in accordance with the rules of such Clearing
Agency) and with respect to Certificates other than Book-Entry Certificates,
the
Holder.
Certificate
Principal Amount:
With
respect to any Certificate (other than a Notional Certificate, Component
Certificate, Class X, Class LT-R, Class AP, Class P Certificate or Subordinate
Certificate), at the time of determination, the maximum specified dollar amount
of principal to which the Holder thereof is then entitled hereunder, such amount
being equal to the initial principal amount set forth on the face of such
Certificate (plus, in the case of any Accrual Certificate, its Percentage
Interest of any related Accrual Amount for each previous Distribution Date),
less the amount of all principal distributions previously made with respect
to
such Certificate and, in the case of Certificates other than the Group 4
Certificates, all Realized Losses (including, in the case of a Subordinate
Certificate, such Certificate’s share of any Subordinate Certificate Writedown
Amount allocated thereto) allocated to such Certificate (or, in the case of
the
Class 4-A1 and Class 4-A2 Certificates, such Certificate’s pro
rata
share of
losses allocated to the Underlying Certificates); provided,
however,
that on
any Distribution Date on which a Subsequent Recovery or Underlying Subsequent
Recovery is distributed, the Certificate Principal Amount of any Class of
Certificates then outstanding for which any Realized Loss or Underlying Realized
Loss has been applied will be increased, in order of seniority, by an amount
(to
be applied pro
rata
to all
Certificates of such Class) equal to the lesser of (i) the amount such Class
of
Certificates has been reduced by any Realized Losses or Underlying Realized
Loss, as applicable, which have not been previously increased by any Subsequent
Recovery or Underlying Subsequent Recovery and (ii) the total amount of any
Subsequent Recovery or Underlying Subsequent Recovery, as applicable,
distributed on such date to Certificateholders after application (for this
purpose) to more senior Classes of Certificates. The “Certificate Principal
Amount” of any Class of Component Certificates, the sum of the Components
thereof. For purposes of Article V hereof, unless specifically provided to
the
contrary, Certificate Principal Amounts shall be determined as of the close
of
business of the immediately preceding Distribution Date, after giving effect
to
all distributions made on such date. Notional Certificates and the Class X,
Class P and Class LT-R Certificates are issued without Certificate Principal
Amounts.
Certificate
Register
and
Certificate
Registrar:
The
register maintained and the registrar appointed, respectively, pursuant to
Section 3.02.
Certificateholder:
The
meaning provided in the definition of “Holder.”
Certification
Parties:
As
defined in Section 6.20(e)(iii).
17
Certifiying
Person:
As
defined in Section 6.20(e)(iii).
Class:
All
Certificates bearing the same class designation, and, in the case of REMIC
I,
REMIC X and REMIC II, all Lower Tier Interests bearing the same
designation.
Class
1-A1 Cap Agreement:
An
interest rate cap agreement entered into on the Closing Date by the Trustee,
not
individually but solely in its capacity as Trustee of the Supplemental Interest
Trust, with the Cap Counterparty, for the benefit of the Class 1-A1
Certificates.
Class
1-A1 Interest Rate Cap Amount:
For the
Class 1-A1 Cap Agreement and any Distribution Date, the amount, if any, to
be
paid by the Class 1-A1 Cap Counterparty to the Trustee for the account of the
Supplemental Interest Trust pursuant to such Class 1-A1 Cap
Agreement.
Class
1-A1 Reserve Fund:
A
separate account established by the Trustee that is held in the Supplemental
Interest Trust for the benefit of the Holders of the Class 1-A1 Certificates.
Class
3-A1 Cap Agreement:
An
interest rate cap agreement entered into on the Closing Date by the Trustee,
not
individually but solely in its capacity as Trustee of the Supplemental Interest
Trust, with the Cap Counterparty, for the benefit of the Class 3-A1
Certificates.
Class
3-A1 Interest Rate Cap Amount:
For the
Class 3-A1 Cap Agreement and any Distribution Date, the amount, if any, to
be
paid by the Class 3-A1 Cap Counterparty to the Trustee for the account of the
Supplemental Interest Trust pursuant to such Class 3-A1 Cap
Agreement.
Class
3-A1 Reserve Fund:
A
separate account established by the Trustee that is held in the Supplemental
Interest Trust for the benefit of the Holders of the Class 3-A1
Certificates.
Class
B Certificate:
Any
Class B1(1-2), Class B2(1-2), Class B3(1-2), Class B4(1-2), Class B5(1-2),
Class
B6(1-2), Class B7(1-2), Class 3B1, Class 3B2, Class 3B3, Class 3B4, Class 3B5,
and Class 3B6 Certificate.
Class
E Certificate:
None.
Class
E Distributable Amount:
Not
applicable.
Class
LT-R Certificates:
Each
Class LT-R Certificate executed by the Trustee, and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto as
Exhibit A and evidencing the residual interest in REMIC I.
Class
Notional Amount:
With
respect to each Class of Notional Certificates, the applicable class notional
amount calculated as provided in the Preliminary Statement hereto.
Class
P Certificate:
The
Class P Certificate executed by the Trustee and authenticated by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A, evidencing
beneficial ownership of the Class P Distributable Amount.
18
Class
P Distributable Amount:
With
respect to each Distribution Date, all Prepayment Penalty Amounts received
during the related Due Period with respect to Mortgage Loans for which the
Mortgage Loan Seller holds the servicing rights.
Class
Percentage:
With
respect to any Component of a Class of Subordinate Certificates and any
Distribution Date, the percentage obtained by dividing the Component Principal
Amount of such Component immediately prior to such Distribution Date by the
sum
of the aggregate Class Principal Amount of all Classes of related Senior
Certificates and the aggregate Component Principal Amount of all Components
of
each Class of Subordinate Certificates having the same parenthetical designation
immediately prior to such date.
Class
Principal Amount:
With
respect to each Class of Certificates other than any Class of Notional
Certificates and the Class P, Class X and Class LT-R Certificates, the aggregate
of the Certificate Principal Amounts of all Certificates of such Class at the
date of determination. With respect to each Class of Notional Certificates
and
the Class X, Class P and Class LT-R Certificates, zero. With respect to each
Class of Lower Tier Interest and any date of determination, the initial Class
Principal Amount, if any, as set forth in the Preliminary Statement as reduced
by all distributions of principal and all losses previously allocated to such
Class.
Class
R-2 Interest:
The
sole residual interest in REMIC II.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act. As of the Closing Date, the Clearing Agency shall be The
Depository Trust Company.
Clearing
Agency Participant:
A
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Clearstream:
Clearstream Banking Luxembourg, and any successor thereto.
Closing
Date:
January
30, 2006.
Code:
The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collection
Account:
A
separate account established and maintained by the Master Servicer pursuant
to
Section 4.01.
Commission:
The
United States Securities and Exchange Commission.
Compensating
Interest Payment:
With
respect to any Distribution Date, an amount equal to the aggregate amount of
any
Prepayment Interest Shortfalls required to be paid by the Servicer with
respect
to such Distribution Date. The Master Servicer shall not be responsible to
make
any Compensating Interest Payment.
19
Component:
Each of
the components having the designations, initial Component Notional Amounts
or
Component Principal Amounts and Component Interest Rates as
follows:
Designation
|
Initial
Component
Notional
or
Principal Amount
|
Component
Interest Rate
|
AP(1)
Component
|
$
881,077
|
0.00%
|
AP(3)
Component
|
$
2,300,529
|
0.00%
|
AX(1)
Component
|
$13,184,665
|
5.50%
|
AX(3)
Component
|
$
8,653,518
|
5.50%
|
PAX(1)
Component
|
$
9,034,738
|
5.50%
|
PAX(3)
Component
|
$
4,445,973
|
5.50%
|
________________
(1)
See
definition of Component Interest Rate below.
Component
Certificate:
Any
Class AP, Class AX or Class PAX.
Component
Interest Rate:
With
respect to any Component, as set forth in the definition of “Component.”
Component
Notional Amount:
With
respect to each Component of the Class AX and Class PAX Certificates, the
applicable class notional amount calculated as provided in the Preliminary
Statement hereto.
Component
Principal Amount:
With
respect to each Class of Component Certificates (other than the Class AX or
Class PAX Certificates) as of any Distribution Date, its respective initial
Component Principal Amount as of the Closing Date as reduced by all amounts
previously distributed with respect to such Component in respect of principal
and the principal portion of any Realized Losses previously allocated to such
Component.
Component
Writedown Amount:
Not
applicable.
Control:
The
meaning specified in Section 8-106 of the UCC.
Conventional
Loan:
A
Mortgage Loan that is not insured by the United States Federal Housing
Administration or guaranteed by the United States Veterans
Administration.
Converted
Mortgage Loan:
None.
Convertible
Mortgage Loan:
None.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
20
Cooperative
Loan Documents:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock power
in
blank; (ii) the original executed Security Agreement and the assignment of
the
Security Agreement endorsed in blank; (iii) the original executed Proprietary
Lease and the assignment of the Proprietary Lease endorsed in blank; (iv) the
original executed Recognition Agreement and the assignment of the Recognition
Agreement (or a blanket assignment of all Recognition Agreements) endorsed
in
blank; (v) the UCC-1 financing statement with evidence of recording thereon,
which has been filed in all places required to perfect the security interest
in
the Cooperative Shares and the Proprietary Lease; and (vi) UCC-3 financing
statements (or copies thereof) or other appropriate UCC financing statements
required by applicable state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
Cooperative
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single-family dwelling located in a Cooperative Property.
Corporate
Trust Office:
The
office of the Trustee at which office at the date of the execution of this
Agreement shall be (i) in the case of Certificate transfers and for purposes
of
presentment and surrender of the Certificates for the final distribution
thereon, 000 Xxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: 15th
Floor
Window and (ii) for all other purposes, 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Agency and Trust - Xxxxxx Mortgage Trust
2006-1 or such other addresses as the Trustee may designate from time to time
by
notice to the Certificateholders, the Depositor and the Master
Servicer.
Corresponding
Class:
With
respect to any class of REMIC II Interests, the Class of Certificates so
designated in the Preliminary Statement hereto. With respect to any Class of
Certificates, the class or classes of Lower Tier Interests so designated in
the
Preliminary Statement hereto.
Corresponding
Component:
With
respect to any class of REMIC I Interests, the Component so designated in the
Preliminary Statement hereto. With respect to any Component, the class or
classes of Lower Tier Interests so designated in the Preliminary Statement
hereto.
Credit
Score:
With
respect to any Mortgage Loan, a numerical assessment of default risk with
respect to the Mortgagor under such Mortgage Loan, determined on the basis
of a
methodology developed by Fair, Xxxxx & Co., Inc.
Credit
Support Percentage:
As to
any Group 3 Subordinate Certificate or Group 1-2 Subordinate Certificate and
any
Distribution Date, the sum of the Class Percentages of all Classes that rank
lower in priority than such Class.
Custodial
Agreement:
Each
custodial agreement attached as Exhibit K hereto, and any custodial agreement
subsequently executed by the Trustee substantially in the form
thereof.
21
Custodian:
Each
custodian appointed by the Trustee pursuant to a Custodial Agreement, and any
successor thereto. The initial custodians shall be LaSalle Bank National
Association and U.S. Bank National Association.
Cut-off
Date:
January
1, 2006.
Cut-off
Date Aggregate Principal Balance:
With
respect to the Mortgage Loans in the Trust Fund on the Closing Date, the
Aggregate Principal Balance for all such Mortgage Loans as of the Cut-off
Date.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction of the Scheduled Payment that the
related Mortgagor is obligated to pay on any Due Date as a result of any
Bankruptcy or similar proceeding.
Deceased
Holder:
Not
applicable.
Deferred
Interest:
Not
applicable.
Deficiency
Amount:
Not
applicable.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a Bankruptcy
or similar proceeding.
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Fund pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefor.
Deposit
Date:
With
respect to each Distribution Date, the Business Day immediately preceding such
Distribution Date.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation having its
principal place of business in New York, or its successors in
interest.
Designated
Rate:
With
respect to Pool 1, 5.50%. With respect to Pool 3, 5.50%. With respect
to Pool 2 and Pool 4, not applicable.
Determination
Date:
With
respect to each Distribution Date, the Remittance Date immediately preceding
such Distribution Date.
Discount
Mortgage Loan:
Any
Mortgage Loan with a Net Mortgage Rate less than the related Designated Rate.
22
Disqualified
Organization:
A
“disqualified organization” as defined in Section 860E(e)(5) of the
Code.
Distressed
Mortgage Loan:
Any
Mortgage Loan that at the date of determination is delinquent in payment for
a
period of 90 days or more without giving effect to any grace period permitted
by
the related Mortgage Note or for which the applicable Servicer or the Trustee
has accepted a deed in lieu of foreclosure.
Distribution
Date:
With
respect to the Certificates other than the Class 4-A1 and Class 4A-2
Certificates, the 25th
day of
each month, or, if such 25th
day is
not a Business Day, the next succeeding Business Day commencing in February
2006. With respect to the Class 4-A1 and Class 4A-2 Certificates, the Business
Day following the Underlying Distribution Date commencing in February
2006.
Distribution
Date Statement:
As
defined in Section 4.03(a) hereof.
Due
Date:
With
respect to any Mortgage Loan, the date on which a Scheduled Payment is due
under
the related Mortgage Note.
Due
Period:
With
respect to any Distribution Date, the period commencing on the second day of
the
month immediately preceding the month in which such Distribution Date occurs
and
ending on the first day of the month in which such Distribution Date
occurs.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies or
(ii) an account or accounts the deposits in which are insured by the FDIC to
the
limits established by such corporation, provided
that any
such deposits not so insured shall be maintained in an account at a depository
institution or trust company whose commercial paper or other short term debt
obligations (or, in the case of a depository institution or trust company which
is the principal subsidiary of a holding company, the commercial paper or other
short term debt or deposit obligations of such holding company or depository
institution, as the case may be) have been rated by each Rating Agency in its
highest short-term rating category, or (iii) a segregated trust account or
accounts (which shall be a “special deposit account”) maintained with the
Trustee or any other federal or state chartered depository institution or trust
company, acting in its fiduciary capacity, in a manner acceptable to the Trustee
and the Rating Agencies. Eligible Accounts may bear interest.
Eligible
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
23
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
GNMA, FNMA or FHLMC with any registered broker/dealer subject to Securities
Investors’ Protection Corporation jurisdiction or any commercial bank insured by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest short-term
rating category;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest short-term credit ratings of each Rating Agency; provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the Aggregate Principal Balance and the
aggregate principal amount of all Eligible Investments in the Certificate
Account; provided,
further,
that
such securities will not be Eligible Investments if they are published as being
under review with negative implications from either Rating Agency;
(v) commercial
paper (including both non interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term ratings;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market fund, common trust fund or time deposit or obligation,
or
interest-bearing or other security or investment, (A) rated in the highest
rating category by each Rating Agency or (B) that would not adversely affect
the
then current rating by either Rating Agency of any of the Certificates. Such
investments in this subsection (viii) may include money market mutual funds
or
common trust funds, including any other fund for which
Citibank, N.A.,
the
Trustee, the Master Servicer or an affiliate thereof serves as an investment
advisor, administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (x) Citibank,
N.A.,
the
Master Servicer or an affiliate thereof charges and collects fees and expenses
from such funds for services rendered, (y) Citibank,
N.A.,
the
Master Servicer or an affiliate thereof charges and collects fees and expenses
for services rendered pursuant to this Agreement, and (z) services performed
for
such funds and pursuant to this Agreement may converge at any time. Citibank,
N.A. or
an
affiliate thereof is specifically authorized to charge and collect from the
Trustee such fees as are collected from all investors in such funds for services
rendered to such funds (but not to exceed investment earnings
thereon);
24
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations, provided
that any
such investment will be a “permitted investment” within the meaning of Section
860G(a)(5) of the Code.
Employee
Discount Rate:
Not
applicable.
Employee
Mortgage Loan:
None.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
ERISA-Restricted
Certificate:
Any
Class R, Class LT-R, Class X, Class P, Class B5(1-2), Class B6(1-2), Class
B7(1-2), Class 3B4, Class 3B5 or Class 3B6 Certificate or any Certificate with
a
rating below the lowest applicable rating permitted under the Underwriter’s
Exemption.
ERISA-Restricted
Trust Certificate:
Any
Class 1-A1 or Class 3-A1 Certificate.
Escrow
Account:
Any
account established and maintained by the applicable Servicer pursuant to the
Servicing Agreement.
Euroclear:
JPMorgan Chase Bank, Brussels office, as operator of the Euroclear
System.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
Excess
Loss:
Any
Bankruptcy Loss, or portion thereof, in excess of the then-applicable Bankruptcy
Loss Limit, any Fraud Loss, or portion thereof, in excess of the then-applicable
Fraud Loss Limit, and any Special Hazard Loss, or portion thereof, in excess
of
the then-applicable Special Hazard Loss Limit.
25
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
FHLMC
or Xxxxxxx Mac:
The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home Finance
Act of 1970, as amended, or any successor thereto.
Final
Scheduled Distribution Date:
With
respect to each Class of Certificates (other than the Group 4 Certificates),
the
Distribution Date in February 2036, and with respect to the Group 4
Certificates, the Distribution Date in November 2035.
Financial
Asset:
The
meaning specified in Section 8-102(a)(9) of the UCC.
Financial
Intermediary:
A
broker, dealer, bank or other financial institution or other Person that clears
through or maintains a custodial relationship with a Clearing Agency
Participant.
FNMA
or Xxxxxx Mae:
The
Federal National Mortgage Association, a federally chartered and privately
owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
Fraud
Loss:
Any
Realized Loss on a Liquidated Mortgage Loan sustained by reason of a default
arising from fraud, dishonesty or misrepresentation in connection with such
Liquidated Mortgage Loan, as reported by the Servicer to the Master
Servicer.
Fraud
Loss Limit:
With
respect to any Distribution Date (x) prior to the first anniversary of the
Cut-off Date, $5,681,008 (with respect to the Pool 1-2 Mortgage Loans) and
$2,229,450 (with respect to the Pool 3 Mortgage Loans), as applicable, less
the
aggregate of Fraud Losses since the Cut-off Date, (y) on the first and second
anniversaries of the Cut-off Date, an amount equal to (i) the lesser of (a)
the
Fraud Loss Limit as of the most recent anniversary of the Cut-off Date and
(b)
1.00% of the aggregate principal balance of all the Pool 1-2 Mortgage Loans
or
Pool 3 Mortgage Loans, as applicable, as of the most recent anniversary of
the
Cut-off Date, (z) on the third and fourth anniversaries of the Cut-off Date,
an
amount equal to (i) the lesser of (a) the Fraud Loss Limit as of the most recent
anniversary of the Cut-off Date and (b) 0.50% of the aggregate principal balance
of all the Pool 1-2 Mortgage Loans or Pool 3 Mortgage Loans, as applicable,
as
of the most recent anniversary of the Cut-off Date and thereafter, the Fraud
Loss Limit shall be zero.
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
26
GNMA:
The
Government National Mortgage Association, a wholly owned corporate
instrumentality of the United States within HUD.
Group
1-2 Certificate Writedown Amount:
The
amount, if any, by which the aggregate Class Principal Amount of the Group
1-2
Subordinate Certificates and the aggregate Class Principal Amount of the related
Senior Certificates on any Distribution Date (after giving effect to
distributions of principal and allocation of Realized Losses on that date)
exceeds the total Scheduled Principal Balance of the Pool 1-2 Mortgage Loans
for
the related Distribution Date.
Group
1-2 Credit Support Depletion Date:
The
Distribution Date on which, giving effect to all distributions on such date,
the
aggregate Class Principal Amount of the Group 1-2 Subordinate Certificates
is
reduced to zero.
Group
1-2 Subordinate Amount:
The sum
of the Group Subordinate Amount for Pool 1 and the Group Subordinate Amount
for
Pool 2.
Group
1-2 Subordinate Certificates:
The
Class B1(1-2), Class B2(1-2), Class B3(1-2), Class B4(1-2), Class B5(1-2),
Class
B6(1-2) and Class B7(1-2) Certificates.
Group
1-2 Subordinate Percentage:
At any
time, the sum of the Class Principal Amounts of the Group 1-2 Subordinate
Certificates divided by the sum of the Non-AP Pool Balance of Pool 1 and Pool
2.
Group
3 Certificate Writedown Amount:
The
amount, if any, by which the aggregate Class Principal Amount of the Group
3
Subordinate Certificates and the aggregate Class Principal Amount of the related
Senior Certificates on any Distribution Date (after giving effect to
distributions of principal and allocation of Realized Losses on that date)
exceeds the total Scheduled Principal Balance of the Pool 3 Mortgage Loans
for
the related Distribution Date.
Group
3 Credit Support Depletion Date:
The
Distribution Date on which, giving effect to all distributions on such date,
the
aggregate Class Principal Amount of the Group 3 Subordinate Certificates is
reduced to zero.
Group
3 Subordinate Certificates:
The
Class 3B1, Class 3B2, Class 3B3, Class 3B4, Class 3B5 and Class 3B6
Certificates.
Group
4 Certificates:
The
Class 4-A1 and Class 4-A2 Certificates.
Group
4 Principal Distribution Amount:
With
respect to any Distribution Date, the Available Distribution Amount for Pool
4
for such Distribution Date minus
amounts
distributed to the Class 4-A1 and Class 4-A2 Certificates on such Distribution
Date in accordance with Section 5.02(a)(i) and (ii).
Group
Subordinate Amount:
With
respect to any Mortgage Pool and any Distribution Date, the excess of the Non-AP
Pool Balance for the immediately preceding Distribution Date for that Mortgage
Pool over the total Certificate Principal Amount of the related Non-AP Senior
Certificates immediately prior to that Distribution Date. With respect to Pool
1
and Pool 2, collectively, and any Distribution Date, the Group 1-2 Subordinate
Amount.
27
Holder
or Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or giving
any consent pursuant to this Agreement, any Certificate registered in the name
of the Depositor, the Trustee, the Master Servicer, the Servicer, the Cap
Counterparty or any Affiliate thereof shall be deemed not to be outstanding
in
determining whether the requisite percentage necessary to effect any such
consent has been obtained, except that, in determining whether the Trustee
shall
be protected in relying upon any such consent, only Certificates which a
Responsible Officer of the Trustee knows to be so owned shall be disregarded.
The Trustee may request and conclusively rely on certifications by the
Depositor, the Master Servicer and the Servicer in determining whether any
Certificates are registered to an Affiliate of the Depositor, the Master
Servicer, the Cap Counterparty or the Servicer. After a Section 7.01(c) Purchase
Event other than in Sections 5.02(a) through (j) and 11.03(a) and (b) herein,
and, except in the case of the Class LT-R Certificates, Sections 3.03, 3.04,
3.05, 3.06, 3.07, 3.09 and 5.07(c), (f) and (i) herein, all references in this
Agreement to “Holder” or “Certificateholder” shall be deemed to be references to
the LTURI-holder, as recorded on the books of the Certificate Registrar, as
holder of the Lower Tier REMIC 1 Uncertificated Regular Interests.
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with
respect to any other Person, a Person who (a) is in fact independent of another
specified Person and any Affiliate of such other Person, (b) does not have
any
material direct financial interest in such other Person or any Affiliate of
such
other Person, and (c) is not connected with such other Person or any Affiliate
of such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions.
Individual
Redemption Certificate:
Not
applicable.
Initial
LIBOR Rate:
4.40%.
Insurance
Policy:
Any
Primary Mortgage Insurance Policy and any standard hazard insurance policy,
flood insurance policy, earthquake insurance policy or title insurance policy
relating to the Mortgage Loans or the Mortgaged Properties, to be in effect
as
of the Closing Date or thereafter during the term of this
Agreement.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i) to cover
expenses incurred by or on behalf of the applicable Servicer in connection
with
procuring such proceeds, (ii) to be applied to restoration or repair of the
related Mortgaged Property, (iii) required to be paid over to the Mortgagor
pursuant to law or the related Mortgage Note or (iv) to be applied toward
payment of any Retained Interest.
Interest
Distribution Amount:
Not
applicable.
Interest-Only
Certificates:
The
Class 1-A2, Class 3-A2, Class AX and Class PAX Certificates.
28
Interest-Only
Components:
The AX(1), AX(3), PAX(1) and PAX(3) Components.
Interest
Shortfall:
With
respect to any Class of Certificates (other than the Class AP Certificates)
and
any Distribution Date, any Accrued Certificate Interest not distributed (or
added to principal) with respect to any previous Distribution Date, other than
any Net Prepayment Interest Shortfalls.
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notice of transfer or
equivalent instrument.
Latest
Possible Maturity Date:
The
Distribution Date in February 2041.
Xxxxxx
Bank:
Xxxxxx
Brothers Bank, FSB.
Xxxxxx
Holdings:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
LIBOR:
With
respect to the first Accrual Period, the Initial LIBOR Rate. With respect to
each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Trustee on the basis of the
“Interest Settlement Rate” set by the British Bankers’ Association (the “BBA”)
for one-month United States dollar deposits, as such rates appear on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination
Date.
If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Trustee will obtain such
rate from Reuters’ “page LIBOR 01” or Bloomberg’s page “BBAM”. If such rate is
not published for such LIBOR Determination Date, LIBOR for such date will be
the
most recently published Interest Settlement Rate. In the event that the BBA
no
longer sets an Interest Settlement Rate, the Trustee will designate an
alternative index that has performed, or that the Trustee expects to perform,
in
a manner substantially similar to the BBA’s Interest Settlement Rate. The
Trustee will select a particular index as the alternative index only if it
receives an Opinion of Counsel, which opinion shall be an expense reimbursed
from the Certificate Account pursuant to Section 4.04, that the selection of
such index will not cause any of the REMICs to lose their classification as
REMICs for federal income tax purposes.
The
establishment of LIBOR by the Trustee and the Trustee’s subsequent calculation
of the Certificate Interest Rate applicable to the LIBOR Certificates for the
relevant Accrual Period, in the absence of manifest error, will be final and
binding.
LIBOR
Business Day:
Any day
on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
LIBOR
Certificate:
Any
Class 1-A1, Class 1-A2, Class 3-A1 or Class 3-A2 Certificate.
LIBOR
Component:
None.
29
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period for any LIBOR Certificate other than the first Accrual
Period.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Mortgage Loan or related REO Property
has been disposed of and as to which the Mortgage Loan or related REO Property
has been disposed of and as to which the Master Servicer or the Servicer has
determined that all amounts that it expects to recover on behalf of the Trust
Fund from or on account of such Mortgage Loan have been recovered.
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or the Servicer in connection
with the liquidation of any defaulted Mortgage Loan and are not recoverable
under the applicable Primary Mortgage Insurance Policy, including, without
limitation, foreclosure and rehabilitation expenses, legal expenses and
unreimbursed amounts expended pursuant to Sections 9.06, 9.16 or
9.22.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage Loan,
including any amounts remaining in the related Escrow Account, together with
any
net proceeds received on a monthly basis with respect to any properties acquired
on behalf of the Holders by foreclosure or deed in lieu of foreclosure, together
with any net proceeds received on a monthly basis with respect to any properties
acquired on behalf of the Holders by foreclosure or deed in lieu of
foreclosure.
Living
Holder:
Not
applicable.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan and any date of determination, the ratio, expressed
as a percentage, of (a) the principal balance of such Mortgage Loan on such
date
over (b) the Original Value thereof.
London
Business Day:
Any day
on which banks are open for dealing in foreign currency and exchange in London,
England and New York City.
Lower
Tier Interest:
Any one
of the interests in a Lower Tier REMIC, as described in the Preliminary
Statement.
Lower
Tier REMIC:
REMIC
I, REMIC X or REMIC II, as described in the Preliminary Statement.
Lower
Tier REMIC 1 Uncertificated Regular Interests:
Lower
Tier Interests of REMIC I constituting regular interests held in uncertificated
form.
LTURI-holder:
The
holder of Lower Tier REMIC 1 Uncertificated Regular Interests, which, upon
the
occurrence of a Section 7.01(c) Purchase Event, shall be the Master Servicer
or
its designee, and including any trustee in its capacity as trustee of any
privately placed securitization.
30
Maintenance:
With
respect to any Cooperative Unit, the rent or fee paid by the Mortgagor to the
Cooperative Corporation pursuant to the Proprietary Lease.
Master
Servicer:
Aurora,
or any successor in interest, or if any successor master servicer shall be
appointed as herein provided, then such successor master servicer.
Master
Servicing Fee:
As to
any Distribution Date, an amount equal to one-twelfth the product of (a) the
Master Servicing Fee Rate and (b) the outstanding principal balance of each
Mortgage Loan.
Master
Servicing Fee Rate:
0.00%
per annum.
Material
Defect:
As
defined in Section 2.02(c) hereof.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware Corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as agent for the holder from
time to time of the Mortgage Note.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor in interest.
Mortgage:
A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note, together with improvements
thereto.
Mortgage
Assets:
The
Mortgage Loans and the Underlying Certificates, collectively.
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan required to be delivered to the Trustee or a Custodian pursuant to this
Agreement.
Mortgage
Loan:
A
Mortgage and the related notes or other evidences of indebtedness secured by
each such Mortgage or a manufactured housing contract conveyed, transferred,
sold, assigned to or deposited with the Trustee pursuant to Section 2.01 or
Section 2.05, including without limitation, each Mortgage Loan listed on the
Mortgage Loan Schedule, as amended from time to time.
Mortgage
Loan Sale Agreement:
The
agreement dated as of January 1, 2006, for the sale of the Mortgage Loans by
Xxxxxx Holdings to the Depositor.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Fund.
Such
schedule shall set forth, among other things, the following information with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number; (ii)
the city, state and zip code of the Mortgaged Property; (iii) the original
principal amount of the Mortgage Loan; (iv) the Mortgage Rate at origination;
(v) the monthly payment of principal and interest at origination; (vi) the
Mortgage Pool in which such Mortgage Loan is included, (vii) the Servicer of
such Mortgage Loan, (viii) the term and method of calculation of Prepayment
Penalty Amounts, if any, and whether such Prepayment Penalty Amounts are to
be
retained by the Servicer or allocated to the Class P Certificate,
(ix) whether such Mortgage Loan is an Employee Mortgage Loan, (x)
the
Mortgage Pool for such Mortgage Loan and (xi) the initial Custodian for such
Mortgage Loan. The Depositor shall be responsible for providing the Trustee
and
the Master Servicer with all amendments to the Mortgage Loan
Schedule.
31
Mortgage
Loan Seller:
Xxxxxx
Holdings or any successor in interest, as the context may require.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
under a Mortgage Loan.
Mortgage
Pool:
Any of
Pool 1, Pool 2 or Pool 3.
Mortgage
Rate:
As to
any Mortgage Loan, the per annum rate at which interest accrues on such Mortgage
Loan, as determined under the related Mortgage Note as reduced by any Relief
Act
Reductions.
Mortgaged
Property:
Either
of (x) the fee simple interest in real property, together with improvements
thereto including any exterior improvements to be completed within 120 days
of
disbursement of the related Mortgage Loan proceeds, or (y) in the case of a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Negative
Amortization Certificate:
None.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds net
of
unreimbursed expenses incurred in connection with liquidation or foreclosure
and
unreimbursed Advances, Servicing Advances, Servicing Fees and Retained Interest,
if any, received and retained in connection with the liquidation of such
Mortgage Loan.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by the sum
of
the Servicing Fee Rate, the applicable Retained Interest Rate, if any, and,
if
applicable, the premium rate on any lender-provided mortgage insurance. The
Net
Mortgage Rate of any Employee Mortgage Loan shall be calculated without regard
to any increase in the Mortgage Rate thereof as a result of the related
Mortgagor ceasing to be an employee of the Underwriter or any of its
affiliates.
Net
Prepayment Interest Shortfall:
With
respect to each Mortgage Pool and any Distribution Date, the excess, if any,
of
any Prepayment Interest Shortfalls with respect to the Mortgage Loans in such
Mortgage Pool for such date over the sum of any amounts paid by the Servicer
with respect to such shortfalls and any amount that is required to be paid
by
the Master Servicer in respect of such shortfalls pursuant to this
Agreement.
32
Net
WAC Rate:
As of
any Distribution Date, the weighted average Net Mortgage Rate of the Mortgage
Loans in Mortgage Pool 2, weighted on the basis of their Scheduled Principal
Balances as of the first day of the related Due Period (or, in the case of
the
first Distribution Date, as of the Cut-off Date).
Non-AP
Percentage:
As to
any Discount Mortgage Loan in Pool 1 and Pool 3, the percentage equivalent
of
the fraction, the numerator of which is the Net Mortgage Rate of such Discount
Mortgage Loan and the denominator of which is the applicable Designated Rate.
As
to any Non-Discount Mortgage Loan in any Mortgage Pool, 100%. With respect
to
any Mortgage Loan in Pool 2, 100%.
Non-AP
Pool Balance:
As to
any Mortgage Pool and any Distribution Date, the sum of the applicable Non-AP
Percentage of the Scheduled Principal Balance of each Mortgage Loan included
in
the applicable Mortgage Pool for such Distribution Date.
Non-AP
Senior Certificate:
Any
Senior Certificate other than the Notional Certificates, the Class AP
Certificates and the Group 4 Certificates.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Non-Discount
Mortgage Loan:
Any
Mortgage Loan with a Net Mortgage Rate equal to or greater than the applicable
Designated Rate.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Non-permitted
Foreign Holder:
As
defined in Section 3.03(f).
Non-U.S.
Person:
Any
person other than a “United States person” within the meaning of Section
7701(a)(30) of the Code.
Notice
of Nonpayment.
Not
applicable.
Notional
Amount:
With
respect to any Notional Certificate or Notional Component and any Distribution
Date, such Certificate’s or Component’s Percentage Interest of the Class
Notional Amount or Component Notional Amount of such Class of Certificates
or
Components for such Distribution Date.
Notional
Certificate:
Any
Class
1-A2, Class 3-A2, Class AX or Class PAX Certificate.
Offering
Document:
Either
of the private placement memorandum dated January 27, 2006, relating
to the Class B5(1-2), Class B6(1-2), Class B7(1-2), Class 3B4, Class 3B5, Class
3B6 Certificates, or the Prospectus.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
33
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Trustee or the Depositor, as applicable, and who may be in-house or outside
counsel to the Depositor, the Master Servicer or a Servicer but which must
be
Independent outside counsel with respect to any such opinion of counsel
concerning the transfer of any Residual Certificate or concerning certain
matters with respect to ERISA, or the taxation, or the federal income tax
status, of each REMIC. For purpose of Section 2.01(c)(i), the Opinion of Counsel
referred to therein may take the form of a memorandum of law or other acceptable
assurance.
Original
Credit Support Percentage:
With
respect to any Class of the Subordinate Certificates, the Credit Support
Percentage for such Class on the Closing Date.
Original
Group 1-2 Subordinate Amount:
The
Group 1-2 Subordinate Amount as of the Cut-off Date.
Original
Group 3 Subordinate Amount:
The
Group Subordinate Amount for Pool 3 as of the Cut-off Date.
Original
Value:
With
respect to any Mortgage Loan, the lesser of (a) the Appraised Value of the
related Mortgaged Property at the time such Mortgage Loan was originated and
(b)
if such Mortgage Loan was obtained to finance the acquisition of the related
Mortgaged Property, the purchase price paid for the related Mortgaged Property
by the Mortgagor at the time such Mortgage Loan was originated.
Originator:
Xxxxxx Brothers Bank, FSB or any other originator contemplated by Item
1110
(§
229.1110) of
Regulation AB.
PAC
Principal Amount:
Not
applicable.
PAC
Certificate:
Not
applicable.
PAC
Principal Amount Schedule:
Not
applicable.
PAX
Mortgage Loans:
The
Non-Discount Mortgage Loans listed on Schedule B-2 hereto.
PAX(1)
Mortgage Loans:
The PAX
Mortgage Loans identified on Schedule B-2 as being included in Pool
1.
PAX(3)
Mortgage Loans:
The PAX
Mortgage Loans identified on Schedule B-2 as being included in Pool
3.
Paying
Agent:
Any
paying agent appointed pursuant to Section 3.08.
Percentage
Interest:
With
respect to any Certificate and the related Class, such Certificate’s percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate other than a Notional Certificate, the Percentage
Interest evidenced thereby shall equal the initial Certificate Principal Amount
thereof divided by the initial Class Principal Amount of all Certificates of
the
same Class. With respect to any Notional Certificate, the Percentage Interest
evidenced thereby shall equal the initial Class Notional Amount divided by
the
initial Class Notional Amount of all Certificates of the same Class. With
respect to the Class X, Class P and Class LT-R Certificates, the Percentage
Interest evidenced thereby shall be as specified on the face thereof, or
otherwise be equal to 100%.
34
Permitted
Servicing Amendment:
Any
amendment to any Servicing Agreement pursuant to Section 11.03(a)(iii) hereunder
in connection with any servicing transfer or transfer of any servicing
rights.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Placement
Agent:
Xxxxxx
Brothers Inc.
Plan
Asset Regulations:
The
Department of Labor regulations set forth in 29 C.F.R. 2510.3-101.
Plan:
An
employee benefit plan or other retirement arrangement which is subject to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan's or arrangement's assets by reason of
their
investment in the entity.
Pool
1:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 1.
Pool
1
Mortgage Loan:
Any
Mortgage Loan in Pool 1.
Pool
1
Percentage:
With
respect to each Distribution Date, the percentage equal to the product of (x)
the sum of (i) the aggregate Class Principal Amount of the Class 1-A5 and the
Class 1-A6 Certificates immediately prior to such date and (ii) $2,237,600,
divided by (y) the aggregate Class Principal Amount of the Class 1-A1, Class
1-A3, Class 1-A4, Class 1-A5 and Class 1-A6 Certificates.
Pool
1
Priority Amount:
With
respect to each Distribution Date, an amount equal to the lesser of (i) the
sum
of (x) the product of the Pool 1 Percentage for such date and the Scheduled
Principal Amount for Pool 1 for such date, and (y) the product of the Pool
1
Percentage for such date, the Shift Percentage for such date and the Unscheduled
Principal Amount for Pool 1 for such date, (ii) 99.5% of the Senior Principal
distribution Amount for Pool 1 for such date, and (iii) the aggregate Class
Principal Amount of the Class 1-A5 and Class 1-A6 Certificates immediately
prior
to such date. Notwithstanding the foregoing, on and after the Group 1-2 Credit
Support Depletion Date, the Class 1-A5 and Class 1-A6 Certificates shall be
entitled to their pro
rata
share of
the Senior Principal Distribution Amount for Pool 1.
Pool
2:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 2.
35
Pool
2
Mortgage Loan:
Any
Mortgage Loan in Pool 2.
Pool
1-2 Mortgage Loans:
The
Mortgage Loans included in Pool 1 and Pool 2.
Pool
3:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 3.
Pool
3
Mortgage Loan:
Any
Mortgage Loan in Pool 3.
Pool
3
Percentage:
With
respect to each Distribution Date, the percentage equal to the product of (x)
the sum of (i) the aggregate Class Principal Amount of the Class 3-A5 and the
Class 3-A6 Certificates immediately prior to such date, and (ii) 1,750,000
divided by (y) the aggregate Class Principal Amount of the Class 3-A1, Class
3-A3, Class 3-A4, Class 3-A5 and Class 3-A6 Certificates.
Pool
3
Priority Amount:
With
respect to each Distribution Date, an amount equal to the lesser of (i) the
sum
of (x) the product of the Pool 3 Percentage for such date and the Scheduled
Principal Amount for Pool 3 for such date, and (y) the product of the Pool
3
Percentage for such date, the Shift Percentage for such date and the Unscheduled
Principal Amount for Pool 3 for such date, (ii) 99.5% of the Senior Principal
distribution Amount for Pool 3 for such date, and (iii) the aggregate Class
Principal Amount of the Class 3-A5 and Class 3-A6 Certificates immediately
prior
to such date. Notwithstanding the foregoing, on and after the Group 3 Credit
Support Depletion Date, the Class 3-A5 and Class 3-A6 Certificates shall be
entitled to their pro
rata
share of
the Senior Principal Distribution Amount for Pool 3.
Pool
4:
The
Underlying Certificates held by the Trustee on behalf of the
Certificateholders.
Pool
Balance:
For
each Mortgage Pool and any Distribution Date, the sum of the Scheduled Principal
Balances of each Mortgage Loan included in such Mortgage Pool for such
Distribution Date.
Preference
Amount:
Not
applicable.
Prepayment
Interest Excess:
With
respect to any Distribution Date and any Principal Prepayment in full received
on the Mortgage Loans serviced by Aurora from the first day through the
sixteenth day of the month during which such Distribution Date occurs, all
amounts paid in respect of interest at the applicable Net Mortgage Rate on
such
Principal Prepayment.
Prepayment
Interest Shortfall:
With
respect to any Distribution Date and (x) any Principal Prepayment in part and
(y) any Principal Prepayment in full with respect to those Mortgage Loans
serviced by Aurora if received on or after the seventeenth day of the month
immediately preceding the month of such Distribution Date, but on or before
the
last day of the month immediately preceding the month of such Distribution
Date,
the difference between (i) one full month’s interest at the applicable Mortgage
Rate (after giving effect to any applicable Relief Act Reduction), as reduced
by
the applicable Servicing Fee Rate, the Master Servicing Fee Rate (if the Master
Servicer is acting as Servicer) and the applicable Retained Interest Rate,
if
any, on the outstanding principal balance of such Mortgage Loan immediately
prior to such prepayment and (ii) the amount of interest actually received
with
respect to such Mortgage Loan in connection with such Principal
Prepayment.
36
Prepayment
Penalty Amounts:
With
respect to any Distribution Date, all premiums or charges paid by the obligors
under the related Mortgage Notes due to Principal Prepayments collected by
the
Servicer during the immediately preceding Prepayment Period.
Prepayment
Period:
With
respect to any Distribution Date and a Principal Prepayment in full (including
any liquidation) with respect to those Mortgage Loans serviced by Aurora, the
period from the seventeenth day of the month immediately preceding the month
of
such Distribution Date to the sixteenth day of the month of such Distribution
Date. With respect to those Mortgage Loans serviced by Aurora, any Distribution
Date and any Principal Prepayment in part, the calendar month immediately
preceding the month in which such Distribution Date occurs.
Primary
Mortgage Insurance Policy:
Mortgage guaranty insurance, if any, on an individual Mortgage Loan, as
evidenced by a policy or certificate.
Principal-Only
Certificates:
The
Class AP Certificates.
Principal-Only
Components:
The
Class AP(1) and AP(3) Components.
Principal
Prepayment:
Any
Mortgagor payment of principal (other than a Balloon Payment) or other recovery
of principal on a Mortgage Loan that is recognized as having been received
or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or the Servicing Agreement.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
Prospectus:
The
prospectus supplement dated January 27, 2006, together with the accompanying
prospectus dated September 26, 2005, relating to each Class of Certificates
other than the Class B5(1-2), Class B6(1-2), Class B7(1-2), Class 3B4, Class
3B5, Class 3B6 and Class P Certificates.
Purchase
Price:
With
respect to the repurchase of a Mortgage Loan pursuant to this Agreement, an
amount equal to the sum of (a) 100% of the unpaid principal balance of such
Mortgage Loan, (b) accrued interest thereon at the Mortgage Rate, from the
date
as to which interest was last paid to (but not including) the Due Date
immediately preceding the related Distribution Date, (c)
any
costs
and damages incurred by the Trust Fund with respect to such Mortgage Loan in
connection with any violation of any federal, state or local predatory or
abusive lending laws or other similar laws and (d) any unreimbursed Servicing
Advances with respect to such Mortgage Loan. The Master Servicer or the
applicable Servicer (or the Trustee, if applicable) shall be reimbursed from
the
Purchase Price for any Mortgage Loan or related REO Property for any Advances
made with respect to such Mortgage Loan that are reimbursable to the Master
Servicer, the Servicer or the Trustee under this Agreement or the Servicing
Agreement, as well as any unreimbursed Servicing Advances and accrued and unpaid
Master Servicing Fees or Servicing Fees, as applicable.
37
QIB:
As
defined in Section 3.03(c).
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account or the Certificate Account and insuring a
minimum, fixed or floating rate of return on investments of such funds, which
contract or surety bond shall:
(a) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(b) provide
that the Trustee may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
(c) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Certificates, the Trustee shall terminate such contract without penalty and
be
entitled to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under such contract
to the date of delivery of such funds to the Trustee;
(d) provide
that the Trustee’s interest therein shall be transferable to any successor
trustee hereunder; and
(e) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account or the Certificate Account, as the case may be, not
later than the Business Day prior to any Distribution Date.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the related Mortgaged Properties are located, duly authorized and licensed
in
such states to transact the applicable insurance business and to write the
insurance provided and whose claims paying ability is rated by each Rating
Agency in its highest rating category or whose selection as an insurer will
not
adversely affect the rating of the Certificates.
38
Qualifying
Substitute Mortgage Loan:
In the
case of a Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage
Loan
that, on the date of substitution, (i) has a Scheduled Principal Balance
(together with that of any other mortgage loan substituted for the same Deleted
Mortgage Loan) as of the Due Date in the month in which such substitution occurs
not in excess of the Scheduled Principal Balance of the related Deleted Mortgage
Loan; provided,
however,
that,
to the extent that the Scheduled Principal Balance of such Mortgage Loan is
less
than the Scheduled Principal Balance of the related Deleted Mortgage Loan,
then
a Substitution Amount shall be paid by the party effecting such substitution
to
the Trustee for deposit into the Certificate Account, and shall be treated
as a
Principal Prepayment hereunder; (ii) has a Net Mortgage Rate not lower than
the
Net Mortgage Rate of the related Deleted Mortgage Loan and will be a Discount
Mortgage Loan if the Deleted Mortgage Loan was a Discount Mortgage Loan or
a
Non-Discount Mortgage Loan if the Deleted Mortgage Loan was a Non-Discount
Mortgage Loan; (iii) has a remaining stated term to maturity not more than
eighteen months longer than, and not more than eighteen months shorter than,
the
remaining term to stated maturity of the related Deleted Mortgage Loan;
provided,
however,
in no
case shall such substitute Mortgage Loan have a remaining stated term to
maturity later than the Final Scheduled Distribution Date; (iv) (A) has a
Loan-to-Value Ratio as of the date of such substitution of not greater than
80%;
provided,
however,
that if
the related Deleted Mortgage Loan has a Loan-to-Value Ratio of greater than
80%
as of the date of such substitution, then the Loan-to-Value Ratio of such
substitute Mortgage Loan may be greater than 80% but shall not be greater than
the Loan-to-Value Ratio of the related Deleted Mortgage Loan and (B) the
addition of such substitute Mortgage Loan does not increase the weighted average
Loan-to-Value Ratio as of the date of such substitution of the related Mortgage
Pool by more than 5%; (v) will comply with all of the representations and
warranties relating to Mortgage Loans set forth herein, as of the date as of
which such substitution occurs; (vi) is not a Cooperative Loan unless the
related Deleted Mortgage Loan was a Cooperative Loan; (vii) if applicable,
has
the same index as and a margin not less than that of the related Deleted
Mortgage Loan; (viii) has not been delinquent for a period of more than 30
days
more than once in the twelve months immediately preceding such date of
substitution; (ix) is covered by a Primary Mortgage Insurance Policy if the
related Deleted Mortgage Loan is so covered, and the Loan-to-Value Ratio of
such
Mortgage Loan is greater than 80%; and (x) has a Credit Score not greater than
20 points lower than the Credit Score of the related Deleted Mortgage Loan;
provided,
however,
that if
the Deleted Mortgage Loan does not have a Credit Score, then such substitute
Mortgage Loan shall have a Credit Score equal to or greater than 700. In the
event that either one mortgage loan is substituted for more than one Deleted
Mortgage Loan or more than one mortgage loan is substituted for one or more
Deleted Mortgage Loans, then (a) the Scheduled Principal Balance referred to
in
clause (i) above shall be determined such that the aggregate Scheduled Principal
Balance of all such substitute Mortgage Loans shall not exceed the aggregate
Scheduled Principal Balance of all Deleted Mortgage Loans and (b) each of (1)
the rate referred to in clause (ii) above, (2) the remaining term to stated
maturity referred to in clause (iii) above, (3) the Loan-to-Value Ratio referred
to in clause (iv) above and (4) the Credit Score referred to in clause (x)
above
shall be determined on a weighted average basis, provided
that the
final scheduled maturity date of any Qualifying Substitute Mortgage Loan shall
not exceed the Final Scheduled Distribution Date of any Class of Certificates.
Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted
Mortgage Loan pursuant to this Agreement, the party effecting such substitution
shall certify such qualification in writing to the Trustee. Notwithstanding
any
provision herein to the contrary, a Qualifying Substitute Mortgage Loan shall
be
deemed to have the same AP Percentage and Non-AP Percentage as that of the
Deleted Mortgage Loan for which it was substituted.
Rating
Agency:
Each of
Xxxxx’x and S&P.
39
Realized
Loss:
(a)
With respect to each Liquidated Mortgage Loan, an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation,
plus
(ii) interest at the applicable Net Mortgage Rate from the date as to which
interest was last paid up to the last day of the month of such liquidation,
minus
(iii)
Liquidation Proceeds received, net of amounts that are reimbursable to the
Master Servicer or the applicable Servicer with respect to such Mortgage Loan
(other than Advances of principal and interest) including expenses of
liquidation, and (b) with respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, the difference between the unpaid principal
balance of such Mortgage Loan immediately prior to such Deficient Valuation
and
the unpaid principal balance of such Mortgage Loan as reduced by the Deficient
Valuation. In determining whether a Realized Loss on a Liquidated Mortgage
Loan
is a Realized Loss of interest or principal, Liquidation Proceeds shall be
allocated, first, to payment of expenses related to such Liquidated Mortgage
Loan (including payment of any Retained Interest), then to accrued unpaid
interest and finally to reduce the principal balance of the Mortgage
Loan.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Record
Date:
With
respect to any Distribution Date and each Class of Certificates (other than
the
LIBOR Certificates), the close of business on the last Business Day of the
month
immediately preceding the month in which such Distribution Date occurs; and
with
respect to any Distribution Date and the LIBOR Certificates, the Business Day
immediately preceding the related Distribution Date.
Redemption
Certificate:
None.
Reference
Date:
January
25, 2005, the date after which the Trust Fund will be entitled to receive all
distributions on the Underlying Certificates.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Regulation
S:
Regulation S promulgated under the Securities Act or any successor provision
thereto, in each case as the same may be amended from time to time; and all
references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition
or
term, as the case may be, or any successor thereto, in each case as the same
may
be amended from time to time.
Regulation
S Global Security:
The
meaning specified in Section 3.01(c).
Reimbursement
Amount:
Not
applicable.
40
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit R attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Trustee, each Custodian or the Servicer, the term “Relevant
Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria
applicable to such parties.
Relevant
UCC:
The
Uniform Commercial Code as in effect in the applicable
jurisdiction.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of interest collectible thereon as a result of application of the
Servicemembers Civil Relief Act, as amended, or any similar state law or local
statute, any amount by which interest collectible on such Mortgage Loan for
the
Due Date in the related Due Period is less than interest accrued thereon for
the
applicable one-month period at the Mortgage Rate without giving effect to such
reduction.
REMIC:
Each of
REMIC I, REMIC X, REMIC II and REMIC III, as described in the Preliminary
Statement hereto.
REMIC
Provisions:
The
provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at sections 860A through 86OG 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.
Remittance
Date:
The day
in each month on which the Servicer is required to remit payments to the account
maintained by the Master Servicer, as specified in the Servicing Agreement,
which is the 18th day of each month (or if such 18th day is not a Business
Day,
the next succeeding Business Day).
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan or
otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Reportable
Event:
As
defined in Section 6.20(f)(i).
Reporting
Servicer:
As
defined in Section 6.20(e)(i).
Residual
Certificate:
Any
Class LT-R or Class R Certificate.
Responsible
Officer:
When
used with respect to the Trustee, any Vice President, Assistant Vice President,
the Secretary, any assistant secretary, any Trust Officer, the Treasurer, or
any
assistant treasurer, working in its corporate trust department and having direct
responsibility for the administration of this Agreement.
Restricted
Certificate:
Any
Class 3B4, Class B5(1-2), Class 3B5, Class B6(1-2), Class 3B6, Class B7(1-2)
or
Class P Certificate and any Restricted Global Security.
41
Restricted
Global Security:
The
meaning specified in Section 3.01(c).
Retained
Interest:
Not
applicable.
Retained
Interest Mortgage Loan:
Not
applicable.
Retained
Interest Holder:
Not
applicable.
Retained
Interest Rate:
Not
applicable.
Retained
Mortgage Documents:
The
meaning specified in Section 2.01(b).
Rules:
As
defined in Section 6.20(c).
S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor in interest.
Sarbanes
Oxley Act:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification:
A
written certification covering the activities of all Servicing Function
Participants and signed by an officer of the Exchange Act Signing Party that
complies with Section 302 of the Xxxxxxxx-Xxxxx Act, as amended from time to
time.
Scheduled
Certificate:
Not
applicable.
Scheduled
Certificate Principal Amount Schedule:
Not
applicable.
Scheduled
Component:
Not
applicable.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction
(excluding all amounts of principal and interest that were due on or before
the
Cut-off Date whenever received) and, in the case of an REO Property, an amount
equal to the Scheduled Payment that would have been due on the related Mortgage
Loan if such Mortgage Loan had remained in existence. In the case of any
bi-weekly payment Mortgage Loan, all payments due on such Mortgage Loan during
any Due Period shall be deemed collectively to constitute the Scheduled Payment
due on such Mortgage Loan in such Due Period.
Scheduled
Principal Amount:
With
respect to each Distribution Date and any Mortgage Pool, the amount described
in
clause (i) of the definition of Senior Principal Distribution Amount with
respect to such Mortgage Pool.
Scheduled
Principal Balance:
With
respect to (i) any Mortgage Loan as of any Distribution Date, the principal
balance of such Mortgage Loan at the close of business on the Cut-off Date,
after giving effect to principal payments due on or before the Cut-off Date,
whether or not received, less an amount equal to principal payments due after
the Cut-off Date and on or before the Due Date in the related Due Period,
whether or not received from the Mortgagor or advanced by the applicable
Servicer or the Master Servicer, and all amounts allocable to unscheduled
principal payments (including Principal Prepayments, Net Liquidation Proceeds,
Insurance Proceeds and condemnation proceeds, in each case to the extent
identified and applied prior to or during the applicable Prepayment Period)
and
(ii) any REO Property as of any Distribution Date, the Scheduled Principal
Balance of the related Mortgage Loan on the Due Date immediately preceding
the
date of acquisition of such REO Property by or on behalf of the Trustee (reduced
by any amount applied as a reduction of principal on the Mortgage Loan). With
respect to a Liquidated Mortgage Loan, the Scheduled Principal Balance will
equal zero. With respect to any Mortgage Loan as of the Cut-off Date, as
specified in the Mortgage Loan Schedule.
42
Section
7.01(c) Purchase Event:
The
purchase of all the Lower Tier REMIC 1 Uncertificated Regular
Interests.
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Account:
The
meaning specified in Section 4.05(a).
Securities
Intermediary:
The
Person acting as Securities Intermediary under this Agreement (which is, as
of
the Closing Date, Citibank, N.A.), any successor in interest, and any successor
Securities Intermediary appointed pursuant to Section 4.02.
Securities
Purchase Agreement:
The
agreement dated as of January 1, 2006, for the sale of the Underlying
Certificates by Xxxxxx Brothers to the Depositor.
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
Security
Entitlement:
The
meaning specified in Section 8-102(a)(17) of the UCC.
Senior
Certificate:
Any
Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4, Class 1-A5, Class 1-A6, Class
2-A1, Class 2-A2, Class 3-A1, Class 3-A2, Class 3-A3, Class 3-A4, Class 3-A5,
Class 3-A6, Class 4-A1, Class 4-A2, Class AP, Class AX, Class PAX or Class
R
Certificate.
Senior
Percentage:
With
respect to any Mortgage Pool and any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the sum of the Class
Principal Amounts of each Class of Non-AP Senior Certificates for the related
Mortgage Pool immediately prior to such Distribution Date and the denominator
of
which is the related Non-AP Pool Balance as of the beginning of the related
Due
Period.
Senior
Prepayment Percentage:
With
respect to each Mortgage Pool and any Distribution Date occurring during the
five years beginning on the first Distribution Date, 100%. With respect to
each
Mortgage Pool and for any Distribution Date occurring on or after the fifth
anniversary of the first Distribution Date, the related Senior Percentage plus
the following percentage of the related Subordinate Percentage for such
Distribution Date: for any Distribution Date in the first year thereafter,
70%;
for any Distribution Date in the second year thereafter, 60%; for any
Distribution Date in the third year thereafter, 40%; for any Distribution Date
in the fourth year thereafter, 20%; and for any subsequent Distribution Date,
0%; provided,
however,
that if
on any of the foregoing Distribution Dates the Senior Percentage for a Mortgage
Pool exceeds the initial Senior Percentage for such Mortgage Pool, the Senior
Prepayment Percentage for such Mortgage Pool for such Distribution Date shall
once again equal 100% for such Distribution Date and if that Mortgage Pool
is
Pool 1 or Pool 2, the Senior Prepayment Percentage for each of Pool 1 and Pool
2
will once again equal 100%.
43
Notwithstanding
the foregoing, no decrease in the Senior Prepayment Percentage for Pool 3 below
the level in effect for the most recent prior period specified above will be
effective if, as of that Distribution Date as to which any such decrease
applies, (1) the average outstanding principal balance on that Distribution
Date
and for the preceding five Distribution Dates of all Mortgage Loans in the
Pool
3 that were delinquent 60 days or more (including for this purpose any Mortgage
Loans in foreclosure or bankruptcy and Mortgage Loans with respect to which
the
related Mortgaged Property has been acquired by the Trust Fund) is greater
than
or equal to 50% of the Group Subordinate Amount for Pool 3 immediately prior
to
such Distribution Date or (2) cumulative Realized Losses with respect to the
Mortgage Loans in Pool 3 exceed (a) with respect to any Distribution Date on
or
after the fifth anniversary but prior to the sixth anniversary of the first
Distribution Date, 30% of the related Original Group 0 Xxxxxxxxxxx Xxxxxx,
(x)
with respect to any Distribution Date on or after the sixth anniversary but
prior to the seventh anniversary of the first Distribution Date, 35% of the
related Original Group 3 Subordinate Amount, (c) with respect to any
Distribution Date on or after the seventh anniversary but prior to the eighth
anniversary of the first Distribution Date, 40% of the related Original Group
0
Xxxxxxxxxxx Xxxxxx, (x) with respect to any Distribution Date on or after the
eighth anniversary but prior to the ninth anniversary of the first Distribution
Date, 45% of the related Original Group 3 Subordinate Amount and (e) with
respect to any Distribution Date on or after the ninth anniversary of the first
Distribution Date, 50% of the related Original Group 3 Subordinate Amount.
In
addition, no decrease in the Senior Prepayment Percentage for any of Pool 1
or
Pool 2 below the level in effect for the most recent prior period specified
above will be effective if, as of that Distribution Date as to which any such
decrease applies, (1) the average outstanding principal balance on that
Distribution Date and for the preceding five Distribution Dates of all Mortgage
Loans in Pool 1 and Pool 2 that were delinquent 60 days or more (including
for
this purpose any Mortgage Loans in foreclosure or bankruptcy and Mortgage Loans
with respect to which the related Mortgaged Property has been acquired by the
Trust Fund) is greater than or equal to 50% of the Group 1-2 Subordinate Amount
immediately prior to such Distribution Date or (2) cumulative Realized Losses
with respect to the Mortgage Loans in Pool 1 and Pool 2 exceed (a) with respect
to any Distribution Date on or after the fifth anniversary but prior to the
sixth anniversary of the first Distribution Date, 30% of the related Original
Group 0-0 Xxxxxxxxxxx Xxxxxx, (x) with respect to any Distribution Date on
or
after the sixth anniversary but prior to the seventh anniversary of the first
Distribution Date, 35% of the related Original Group 1-2 Subordinate Amount,
(c)
with respect to any Distribution Date on or after the seventh anniversary but
prior to the eighth anniversary of the first Distribution Date, 40% of the
related Original Group 0-0 Xxxxxxxxxxx Xxxxxx, (x) with respect to any
Distribution Date on or after the eighth anniversary but prior to the ninth
anniversary of the first Distribution Date, 45% of the related Original Group
1-2 Subordinate Amount and (e) with respect to any Distribution Date on or
after
the ninth anniversary of the first Distribution Date, 50% of the related
Original Group 1-2 Subordinate Amount. After the Class Principal Amount of
each
Class of Senior Certificates for the related Mortgage Pool has been reduced
to
zero, the Senior Prepayment Percentage for the related Mortgage Pool will be
zero.
44
Senior
Principal Distribution Amount:
For any
Mortgage Pool and any Distribution Date, the sum of the following
amounts:
(i) the
product of (a) the related Senior Percentage for such date and (b) the principal
portion (multiplied by the applicable Non-AP Percentage) of each Scheduled
Payment (without giving effect to any Debt Service Reduction occurring prior
to
the Bankruptcy Coverage Termination Date), on each Mortgage Loan in the related
Mortgage Pool due during the related Due Period;
(ii) the
product of (a) the related Senior Prepayment Percentage for such date and (b)
each of the following amounts (multiplied by the applicable Non-AP Percentage):
(1) each Principal Prepayment on the Mortgage Loans in the related Mortgage
Pool
collected during the related Prepayment Period, (2) each other unscheduled
collection, including any Subsequent Recovery, Insurance Proceeds and Net
Liquidation Proceeds (other than with respect to any Mortgage Loan in the
related Mortgage Pool that was finally liquidated during the related Prepayment
Period) representing or allocable to recoveries of principal received during
the
related Prepayment Period, and (3) the principal portion of all proceeds of
the
purchase of any Mortgage Loan in the related Mortgage Pool (or, in the case
of a
permitted substitution, amounts representing a principal adjustment) actually
received by the Trustee during the related Prepayment Period;
(iii) with
respect to unscheduled recoveries allocable to principal of any Mortgage Loan
in
the related Mortgage Pool that was finally liquidated during the related
Prepayment Period, the lesser of (a) the related net Liquidation Proceeds
allocable to principal (multiplied by the applicable Non-AP Percentage) and
(b)
the product of the related Senior Prepayment Percentage for such date and the
Scheduled Principal Balance (multiplied by the applicable Non-AP Percentage)
of
such related Mortgage Loan at the time of liquidation; and
(iv) any
amounts described in clauses (i) through (iii) for any previous Distribution
Date that remain unpaid.
If
on any
Distribution Date the Class Principal Amount of the Class or Classes of Non-AP
Senior Certificates related to any Mortgage Pool have been reduced to zero,
the
Senior Principal Distribution Amount for such Class or Classes of Non-AP Senior
Certificates for such date (following such reduction) and each subsequent
Distribution Date shall be zero.
Senior
Principal Priorities:
The
priorities for distribution of principal to the Senior Certificates and
Components as set forth in Exhibit O.
Servicer:
Aurora,
or any successors in interest.
Service(s)(ing):
In accordance with Regulation AB, the act of
managing or collecting payments on the Mortgage Loans or any other assets of
the
Trust Fund by an entity that meets the definition of “servicer” set forth in
Item 1101 of Regulation AB. For clarification purposes, any uncapitalized
occurrence of this term shall have the meaning commonly understood by
participants in the residential mortgage-backed securitization market.
45
Servicing
Advances:
Expenditures incurred by the Servicer in connection with the liquidation or
foreclosure of a Mortgage Loan which are eligible for reimbursement under the
Servicing Agreement.
Servicing
Agreement:
The
servicing agreement between the Servicer and the Mortgage Loan Seller and
acknowledged by the Trustee dated as of January 1, 2006, and any other servicing
agreement entered into between a successor servicer and the Mortgage Loan Seller
or the Trustee pursuant to the terms hereof.
Servicing
Fee:
The
Servicing Fee specified in the Servicing Agreement.
Servicing
Fee Rate:
With
respect to the Servicer, as specified in the Servicing Agreement.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than the Servicer, each
Custodian, the Master Servicer and the Trustee, that is participating in the
servicing function within the meaning of Regulation AB, unless such Person’s
activities relate only to 5% or less of the Mortgage Loans.
Servicing
Officer:
Any
officer of the Master Servicer involved in or responsible for the administration
and servicing or master servicing of the Mortgage Loans whose name appears
on a
list of servicing officers furnished by the Master Servicer to the Trustee
and
the Custodian, as such list may from time to time be amended.
Shift
Percentage:
With
respect to each Distribution Date occurring during the five years beginning
on
the first Distribution Date, 0%. With respect to each Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date,
the
following percentage for such Distribution Date; for any Distribution Date
in
the first year thereafter, 30%; for any Distribution Date in the second year
thereafter, 40%; for any Distribution Date in the third year thereafter, 60%;
for any Distribution Date in the fourth year thereafter, 80%; and for any
subsequent Distribution Date, 100%.
Special
Hazard Loss:
With
respect to the Mortgage Loans, (x) any Realized Loss arising out of any direct
physical loss or damage to a Mortgaged Property which is caused by or results
from any cause, exclusive of any loss covered by a hazard policy or a flood
insurance policy required to be maintained in respect of such Mortgaged Property
and any loss caused by or resulting from (i) normal wear and tear, (ii)
conversion or other dishonest act on the part of the Trustee, the Master
Servicer, the Servicer or any of their agents or employees, or (iii) errors
in
design, faulty workmanship or faulty materials, unless the collapse of the
property or a part thereof ensues, or (y) any Realized Loss arising from or
related to the presence or suspected presence of hazardous wastes, or hazardous
substances on a Mortgaged Property unless such loss is covered by a hazard
policy or flood insurance policy required to be maintained in respect of such
Mortgaged Property, in any case, as reported by the Servicer to the Master
Servicer.
Special
Hazard Loss Limit:
As of
the Cut-off Date, $2,840,505 (with respect to the Pool 1-2 Mortgage Loans)
and
$4,000,000 (with respect to the Pool 3 Mortgage Loans), which amounts shall
be
reduced from time to time to an amount equal on any Distribution Date to the
lesser of (a) the greatest of (i) 1.00%
of
the aggregate of the Scheduled Principal Balances of the Pool 1-2 Mortgage
Loans
or Pool 3 Mortgage Loans, as applicable; (ii) twice the Scheduled Principal
Balance of the Mortgage Loan in Pool 1 or Pool 2, in the case of the Pool 1-2
Mortgage Loans, or in any of Pool 3, in the case of the Pool 3 Mortgage Loans,
having the highest Scheduled Principal Balance, and (iii) the aggregate
Scheduled Principal Balances of the Pool 1-2 Mortgage Loans or Pool 3 Mortgage
Loans, as applicable, secured by Mortgaged Properties located in the single
California postal zip code area having the highest aggregate Scheduled Principal
Balance of Pool 1-2 Mortgage Loans or Pool 3 Mortgage Loans, as applicable,
of
any such postal zip code area and (b) the related Special Hazard Loss Limit
as
of the Closing Date less the amount, if any, of Special Hazard Losses incurred
with respect to Pool 1-2 Mortgage Loans or the Pool 3 Mortgage Loans, as
applicable, since the Closing Date.
46
Specified
Rating:
Not
applicable.
Sponsor:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one or
more discrete material functions required to be performed under
this Agreement the Servicing Agreement, asany subservicing
agreement or identified in Item 1122(d) of Regulation AB with respect to
the Mortgage Loans under the direction or authority of the Trustee, the Master
Servicer, a Custodian or the Servicer.
Subordinate
Certificate:
Any
Class B Certificate.
Subordinate
Component:
Not
applicable.
Subordinate
Certificate Percentage:
With
respect to any Distribution Date and any Group 3 Subordinate Certificate or
Group 1-2 Subordinate Certificate, the percentage obtained by dividing the
Certificate Principal Amount of such Component immediately prior to such
Distribution Date by the aggregate Certificate Principal Amount of all
Certificates having the same parenthetical designation immediately prior to
such
Distribution Date.
Subordinate
Certificate Writedown Amount:
The
Group 1-2 Subordinate Certificate Writedown Amount or the Group 3 Subordinate
Certificate Writedown Amount, as applicable.
Subordinate
Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the difference between
100% and the related Senior Percentage for such Distribution Date.
Subordinate
Prepayment Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the difference between
100% and the related Senior Prepayment Percentage for such Distribution
Date.
Subordinate
Principal Distribution Amount:
For any
Mortgage Pool and any Distribution Date, the sum of the following:
47
(i) the
product of (a) the related Subordinate Percentage for such date and (b) the
principal portion (multiplied by the applicable Non-AP Percentage) of each
Scheduled Payment (without giving effect to any Debt Service Reduction occurring
prior to the applicable Bankruptcy Coverage Termination Date) on each Mortgage
Loan in the related Mortgage Pool due during the related Due
Period;
(ii) the
product of (a) the related Subordinate Prepayment Percentage for such date
and
(b) each of the following amounts (multiplied by the applicable Non-AP
Percentage): (1) each Principal Prepayment on the Mortgage Loans in the related
Mortgage Pool collected during the related Prepayment Period, (2) each other
unscheduled collection, including any Subsequent Recovery, Insurance Proceeds
and Net Liquidation Proceeds (other than with respect to any Mortgage Loan
in
the related Mortgage Pool that was finally liquidated during the related
Prepayment Period) representing or allocable to recoveries of principal received
during the related Prepayment Period, and (3) the principal portion of all
proceeds of the purchase of any Mortgage Loan in the related Mortgage Pool
(or,
in the case of a permitted substitution, amounts representing a principal
adjustment) actually received by the Trustee during the related Prepayment
Period;
(iii) with
respect to unscheduled recoveries allocable to principal of any Mortgage Loan
in
the related Mortgage Pool that was finally liquidated during the related
Prepayment Period, the related net Liquidation Proceeds allocable to principal
(multiplied by the applicable Non-AP Percentage) less any related amount paid
pursuant to subsection (iii) of the definition of Senior Principal Distribution
Amount for the related Mortgage Pool; and
(iv) any
amounts described in clauses (i) through (iii) for any previous Distribution
Date that remain unpaid.
Subsequent
Recovery:
The
amount, if any, recovered by the Servicer or the Master Servicer with respect
to
a Liquidated Mortgage Loan with respect to which a Realized Loss has been
incurred after liquidation and disposition of such Mortgage Loan.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer or Additional Servicer, and
(iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of any material servicing functions
required to be performed under this Agreement, any related Servicing Agreement
or any subservicing agreement that are identified in Item 1122(d) of Regulation
AB.
Substitution
Amount:
The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus
unpaid
interest thereon at the applicable Net Mortgage Rate from the date on which
interest was first paid through the end of the Due Period in which such
substitution occurs, and any related unpaid Advances or Servicing Advances
or
unpaid Servicing Fees, and the amount of any costs and damages incurred by
the
Trust Fund associated with a violation of any applicable federal, state or
local
predatory or abusive lending law in connection with the origination of such
Deleted Mortgage Loan.
48
Supplemental
Interest Trust:
A
separate trust created under the Trust Agreement that will hold the Class 1-A1
Cap Agreement and the Class 3-A1 Cap Agreement.
TAC
Certificate:
Not
applicable.
TAC
Principal Amount:
Not
applicable.
TAC
Principal Amount Schedule:
Not
applicable.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Termination
Price:
As
defined in Section 7.01 hereof.
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Transfer
Agreement:
As
defined in the Mortgage Loan Sale Agreement.
Transferor:
Each
seller of Mortgage Loans to Xxxxxx Holdings pursuant to a Transfer
Agreement.
Trust
Fund:
The
corpus of the trust created pursuant to this Agreement, consisting of the
Underlying Certificates and all payments thereon due after the Reference Date,
the Mortgage Loans (other than any Retained Interest), the assignment of the
Depositor’s rights under the Mortgage Loan Sale Agreement, such amounts as shall
from time to time be held in the Collection Account, the Certificate Account,
any Escrow Account, the Insurance Policies, any REO Property and the other
items
referred to in, and conveyed to the Trustee under, Section 2.01(a).
Trustee:
Citibank, N.A., not in its individual capacity but solely as Trustee, or any
successor in interest, or if any successor trustee or any co-trustee shall
be
appointed as herein provided, then such successor trustee and such co-trustee,
as the case may be.
UCC:
The
Uniform Commercial Code as adopted in the State of New York.
Undercollateralization
Distribution:
As
defined in Section 5.02(h)(ii).
Undercollateralized
Class or Classes:
With
respect to any Distribution Date, any Non-AP Senior Certificate or Certificates
relating to a Mortgage Pool (other than Pool 1) as to which the total
Certificate Principal Amount thereof, after giving effect to distributions
pursuant to Sections 5.02(a) and (b) on such date, is greater than the Non-AP
Pool Balance of the Mortgage Pools (other than Pool 1) for such Distribution
Date.
Underlying
Certificates:
$69,023,828.00
aggregate principal amount of Xxxxxx Mortgage Trust Mortgage Pass-Through
Certificates, Series 2005-1, Class 2-A1.
49
Underlying
Distribution Date:
The
25th day of each month or, if such 25th day is not a Business Day, the next
succeeding Business Day.
Underlying
Distribution Date Statement:
The
distribution date statement relating to the Underlying Certificates made
available to the Trustee.
Underlying
Master Servicer:
Aurora,
in its capacity as master servicer of the Underlying Trust Fund, or any
successor or assign.
Underlying
Mortgage Loans:
The
mortgage loans held by the Underlying Trustee of the Underlying Trust Fund
and
relating to the Underlying Certificates.
Underlying
Realized Loss:
The
amount calculated in accordance with the definition of “Realized Loss” set forth
in the Underlying Trust Agreement.
Underlying
Subsequent Recovery:
The
amount calculated in accordance with the definition of “Subsequent Recovery” set
forth in the Underlying Trust Agreement.
Underlying
Trust Agreement:
That
certain trust agreement dated as of October 1, 2005, among the Depositor, the
Underlying Master Servicer and the Underlying Trustee.
Underlying
Trust Fund:
With
respect to the Underlying Certificates, the trust established by the Underlying
Trust Agreement providing for the issuance of the Underlying
Certificates.
Underlying
Trustee:
U.S.
Bank National Association, in its capacity as trustee under the Underlying
Trust
Agreement, or any successor thereto.
Underwriter:
Xxxxxx
Brothers Inc.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), as
amended (or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
Unpaid
Basis Risk Shortfall:
With
respect to any Distribution Date and any of the Class 1-A1 or Class 3-A1
Certificates, the aggregate of all Basis risk Shortfalls with respect to such
Class remaining unpaid from previous Distribution Dates, plus interest accrued
thereon at the Certificate Interest Rate.
Unscheduled
Principal Amount:
With
respect to each Distribution Date and any Mortgage Pool, the amount described
in
clauses (ii) and (iii) (without application of the related Senior Prepayment
Percentage) of the definition of Senior Principal Distribution Amount with
respect to such Mortgage Pool.
Voting
Interests:
The
portion of the voting rights of all the Certificates that is allocated to any
Certificate for purposes of the voting provisions of this Agreement. At all
times during the term of this Agreement until the Class Notional Amount of
each
Class of Notional Certificates has been reduced to zero, 93% of all Voting
Interests shall be allocated to the Certificates other than the Notional
Certificates and the Class P and Class X Certificates. The Class P and Class
X
Certificates shall each be allocated 1% of all Voting Interests, and 5% of
all
Voting Interests shall be allocated to the Notional Certificates. After the
Class Notional Amount of each Class of Notional Certificate has been reduced
to
zero, 100% of all Voting Interests shall be allocated to the remaining Classes
of Certificates. Voting Interests allocated to the Notional Certificates shall
be allocated among the Classes of such Certificates (and among the Certificates
of each such Class) in proportion to their Class Notional Amounts (or Notional
Amounts). Voting Interests shall be allocated among the other Classes of
Certificates (and among the Certificates of each such Class) in proportion
to
their Class Principal Amounts (or Certificate Principal Amounts). In the case
of
the purchase by the Master Servicer of the Lower Tier REMIC 1 Uncertificated
Regular Interests pursuant to a Section 7.01(c) Purchase Event, the LTURI-holder
shall be allocated 100% of the Voting Interests and upon such purchase any
provisions in this Agreement which requires a vote by, a direction or notice
given by, an action taken by, a request in writing by or the consent of, any
percentage of the Holders of the Certificates or any Class of Certificates
may
be exercised by the LTURI-holder.
50
Section 1.02. |
Calculations
Respecting Mortgage Loans.
|
Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan
in the Trust Fund and the Underlying Certificates shall be made based upon
current information as to the terms of the Mortgage Loans and reports of
payments received from the Mortgagor on such Mortgage Loans and based upon
the
Underlying Distribution Date Statements, and payments to be made to the Trustee
as supplied to the Trustee by the Master Servicer and the Underlying Trustee.
The Trustee shall not be required to recompute, verify or recalculate the
information supplied to it by the Master Servicer.
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
Section 2.01. |
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
(a) Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, subject to Sections 2.02, 2.04, 2.05 and 2.06, in trust,
all
the right, title and interest of the Depositor in and to the Mortgage Loans.
Such conveyance includes, without limitation, the Underlying Certificates,
including the right to all distributions of principal and interest received
on
or with respect to the Underlying Certificates after the Reference Date, the
right to all distributions of principal and interest received on or with respect
to the Mortgage Loans on and after the Cut-off Date (other than payments of
principal and interest due on or before such date) and all such payments due
after such date but received prior to such date and intended by the related
Mortgagors to be applied after such date, together with all of the Depositor’s
right, title and interest in and to the Collection Account and all amounts
from
time to time credited to and the proceeds of the Collection Account, the
Certificate Account and all amounts from time to time credited to and the
proceeds of the Certificate Account, any Escrow Account established pursuant
to
Section 9.06 hereof, the Basis Risk Reserve Fund established pursuant to Section
5.07 and all amounts from time to time credited to and the proceeds of any
such
Escrow Account, any REO Property and the proceeds thereof, the Depositor’s
rights under any Insurance Policies related to the Mortgage Loans, and the
Depositor’s security interest in any collateral pledged to secure the Mortgage
Loans, including the Mortgaged Properties and any Additional Collateral, and
any
proceeds of the foregoing, to have and to hold, in trust; and the Trustee
declares that, subject to the review provided for in Section 2.02, it (or a
Custodian on its behalf) has received and shall hold the Trust Fund, as trustee,
in trust, for the benefit and use of the Holders of the Certificates and for
the
purposes and subject to the terms and conditions set forth in this Agreement,
and, concurrently with such receipt, has caused to be executed, authenticated
and delivered to or upon the order of the Depositor, in exchange for the Trust
Fund, Certificates in the authorized denominations evidencing the entire
ownership of the Trust Fund.
51
Concurrently
with the execution and delivery of this Agreement and the Cap Agreements, the
Depositor does hereby assign to the Trustee all of its rights and interest
under
the Mortgage Loan Sale Agreement including all rights of the Mortgage Loan
Seller under the Servicing Agreement and Transfer Agreements to the extent
assigned under such Mortgage Loan Sale Agreement. The Trustee hereby accepts
such assignment, and shall be entitled to exercise all rights of the Depositor
under the Mortgage Loan Sale Agreement as if, for such purpose, it were the
Depositor. The foregoing sale, transfer, assignment, set-over, deposit and
conveyance does not and is not intended to result in creation or assumption
by
the Trustee of any obligation of the Depositor, the Mortgage Loan Seller, or
any
other Person in connection with the Mortgage Loans or any other agreement or
instrument relating thereto except as specifically set forth herein. The
Depositor hereby authorizes and directs the Trustee, solely in its capacity
as
Trustee of the Supplemental Interest Trust created hereunder, to execute and
deliver the Cap Agreements. The Seller, the Master Servicer, the Depositor
and
the Certificateholders acknowledge and agree that the Trustee is executing
the
Cap Agreements solely in its capacity as trustee of the Supplemental Interest
Trust, and not in its individual capacity. The Trustee shall have no duty or
responsibility to enter into any other interest rate cap agreement upon the
expiration or termination of the Cap Agreements.
It
is
agreed and understood by the Depositor and the Trustee (and the Depositor has
so
represented and recognized in the Mortgage Loan Sale Agreement) that it is
not
intended that any Mortgage Loan to be included in the Trust Fund be a (i)
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003; (ii) “High-Cost Home Loan” as defined in the New Mexico Home
Loan Protection Act effective January 1, 2004; (iii) “High-Cost Home Mortgage
Loans” as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 and (iv) “High Cost Home Loans” as defined in the
Indiana Home Loan Practices Act effective January 1, 2005.
(b) In
connection with such transfer and assignment, the Depositor does hereby deliver
and deposit with, or cause to be delivered to and deposited with, the Trustee,
and/or any custodian acting on the Trustee’s behalf, if applicable, the
following documents or instruments with respect to each Mortgage Loan (each
a
“Mortgage File”) so transferred and assigned:
52
(i) with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of the Trustee, as shown in Exhibit B-4,
or
in blank (in each case, with all necessary intervening endorsements as
applicable);
(ii) the
original of any guarantee, security agreement or pledge agreement executed
in
connection with the Mortgage Note, assigned to the Trustee;
(iii) with
respect to each Mortgage Loan other than a Cooperative Loan, the original
recorded Mortgage with evidence of recording indicated thereon and the original
recorded power of attorney, if the Mortgage was executed pursuant to a power
of
attorney, with evidence of recording thereon or, if such Mortgage or power
of
attorney has been submitted for recording but has not been returned from the
applicable public recording office, has been lost or is not otherwise available,
a copy of such Mortgage or power of attorney, as the case may be, certified
to
be true and complete copy of the original submitted for recording. If, in
connection with any Mortgage Loan, the Depositor cannot deliver the Mortgage
with evidence of recording thereon on or prior to the Closing Date because
of a
delay caused by the public recording office where such Mortgage has been
delivered for recordation or because such Mortgage has been lost, the Depositor
shall deliver or cause to be delivered to the Trustee (or its custodian), in
the
case of a delay due to recording, a true copy of such Mortgage, pending delivery
of the original thereof, together with an Officer’s Certificate of the Depositor
certifying that the copy of such Mortgage delivered to the Trustee (or its
custodian) is a true copy and that the original of such Mortgage has been
forwarded to the public recording office, or, in the case of a Mortgage that
has
been lost, a copy thereof (certified as provided for under the laws of the
appropriate jurisdiction) and a written Opinion of Counsel acceptable to the
Trustee and the Depositor that an original recorded Mortgage is not required
to
enforce the Trustee’s interest in the Mortgage Loan;
(iv) the
original of each assumption, modification or substitution agreement, if any,
relating to the Mortgage Loans, or, as to any assumption, modification or
substitution agreement which cannot be delivered on or prior to the Closing
Date
because of a delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for recordation,
a
photocopy of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or its custodian) is a true
copy and that the original of such agreement has been forwarded to the public
recording office;
(v) with
respect to each Non-MERS Mortgage Loan other than a Cooperative Loan, the
original Assignment of Mortgage for each Mortgage Loan;
(vi) if
applicable, such original intervening assignments of the Mortgage, notice of
transfer or equivalent instrument (each, an “Intervening Assignment”), as may be
necessary to show a complete chain of assignment from the originator, or, in
the
case of an Intervening Assignment that has been lost, a written Opinion of
Counsel acceptable to the Depositor that such original Intervening Assignment
is
not required to enforce the Trustee’s interest in the Mortgage
Loans;
53
(vii) the
original Primary Mortgage Insurance Policy or certificate, if private mortgage
guaranty insurance is required;
(viii) with
respect to each Mortgage Loan other than a Cooperative Loan, the original
mortgagee title insurance policy or attorney’s opinion of title and abstract of
title;
(ix) the
original of any security agreement, chattel mortgage or equivalent executed
in
connection with the Mortgage or as to any security agreement, chattel mortgage
or their equivalent that cannot be delivered on or prior to the Closing Date
because of a delay caused by the public recording office where such document
has
been delivered for recordation, a photocopy of such document, pending delivery
of the original thereof, together with an Officer’s Certificate of the Depositor
certifying that the copy of such security agreement, chattel mortgage or their
equivalent delivered to the Trustee (or its custodian) is a true copy and that
the original of such document has been forwarded to the public recording
office;
(x) with
respect to any Cooperative Loan, the Cooperative Loan Documents;
(xi) in
connection with any pledge of Additional Collateral, the original additional
collateral pledge and security agreement executed in connection therewith,
assigned to the Trustee; and
(xii) with
respect to any manufactured housing contract, any related manufactured housing
sales contract, installment loan agreement or participation
interest.
The
parties hereto acknowledge and agree that the form of endorsement attached
hereto as Exhibit B-4 is intended to effect the transfer to the Trustee, for
the
benefit of the Certificateholders, of the Mortgage Notes and the
Mortgages.
Notwithstanding
the above, certain of the Mortgage Files to be delivered and deposited with
LaSalle Bank National Association, as custodian for the Mortgage Loans serviced
by Xxxxx Fargo, shall include only the documents or instruments referred to
in
(i), (ii), (iv) and (v) above and the other documents identified above shall
be
delivered to and held by Xxxxx Fargo, as servicer, acting on the Trustee’s
behalf. Upon the occurrence of a Document Transfer Event or at the request
of
the Trustee, Xxxxx Fargo will deliver any documents referred to in (iii), (vi),
(vii), (viii), (ix), (x), (xi) and (xii) above (the “Retained Mortgage
Documents”).
In
connection with the assignment of the Underlying Certificates, the Depositor
shall have caused the Underlying Certificates to be transferred to the Trustee
on the book-entry system of the Depository Trust Company. Any payment received
by the Depositor which shall be due to the Trust Fund hereunder shall be paid
immediately to the Trustee.
(c) (i)
Assignments of Mortgage with respect to each Non-MERS Mortgage Loan other than
a
Cooperative Loan shall be recorded; provided,
however,
that
such Assignments of Mortgage need not be recorded if, in the Opinion of Counsel
(which must be from Independent counsel) (which Opinion of Counsel may be in
the
form of a memorandum of law) acceptable to the Trustee and the Rating Agencies,
recording in such states is not required to protect the Trustee’s interest in
the related Non-MERS Mortgage Loans. Subject to the preceding sentence, as
soon
as practicable after the Closing Date (but in no event more than 3 months
thereafter except to the extent delays are caused by the applicable recording
office), the Trustee, at the expense of the Depositor and with the cooperation
of the applicable Servicer, shall cause to be properly recorded by the Servicer
in each public recording office where the related Mortgages are recorded each
Assignment of Mortgage referred to in subsection (b)(v) above with respect
to
each Non-MERS Mortgage Loan. With respect to each Cooperative Loan, the Trustee,
at the expense of the Depositor and with the cooperation of the applicable
Servicer, shall cause the Servicer to take such actions as are necessary under
applicable law in order to perfect the interest of the Trustee in the related
Mortgaged Property.
54
(ii) With
respect to each MERS Mortgage Loan, the applicable Servicer, at the expense
of
the Depositor and with the cooperation of the Trustee, shall take such actions
as are necessary to cause the Trustee to be clearly identified as the owner
of
each such Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS.
(d) In
instances where a Title Insurance Policy is required to be delivered to the
Trustee, or to the applicable Custodian on behalf of the Trustee, under clause
(b)(viii) above and is not so delivered, the Depositor will provide a copy
of
such Title Insurance Policy to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, as promptly as practicable after the execution and
delivery hereof, but in any case within 180 days of the Closing
Date.
(e) For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, herewith delivers to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, an Officer’s Certificate which shall include a statement
to the effect that all amounts received in connection with such prepayment
that
are required to be deposited in the applicable Collection Account pursuant
to
Section 4.01 have been so deposited. All original documents that are not
delivered to the Trustee or the applicable Custodian on behalf of the Trustee
shall be held by the applicable Servicer in trust for the benefit of the Trustee
and the Certificateholders.
Section 2.02. |
Acceptance
of Trust Fund by Trustee; Review of Documentation for Trust
Fund.
|
(a) The
Trustee, by execution and delivery hereof, acknowledges (i) receipt of the
Underlying Certificates and declares that it holds and will hold such Underlying
Certificates in trust for the exclusive use and benefit of all present and
future Certificateholders, and (ii) receipt by it or a Custodian on behalf
of
the Trustee, of the Mortgage Files pertaining to the Mortgage Loans listed
on
the Mortgage Loan Schedule, subject to review thereof by the Trustee, or by
the
applicable Custodian on behalf of the Trustee, under this Section 2.02. The
Trustee, or the applicable Custodian on behalf of the Trustee, will execute
and
deliver to the Trustee, the Depositor and the Master Servicer on the Closing
Date an Initial Certification in the form annexed hereto as Exhibit B-1 (or
in
the form annexed to the applicable Custodial Agreement as Exhibit B-1, as
applicable.
55
(b) Within
45
days after the Closing Date, the Trustee or the applicable Custodian will,
on
behalf of the Trustee and for the benefit of Holders of the Certificates, review
each Mortgage File to ascertain that all required documents set forth in Section
2.01 have been received and appear on their face to contain the requisite
signatures by or on behalf of the respective parties thereto, and shall deliver
to the Trustee, the Depositor and the Master Servicer an Interim Certification
in the form annexed hereto as Exhibit B-2 (or in the form annexed to the
applicable Custodial Agreement as Exhibit B-2, as applicable to the effect
that,
as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan prepaid in full or any Mortgage Loan specifically identified
in
such certification as not covered by such certification), (i) all of the
applicable documents specified in Section 2.01(b) are in its possession and
(ii)
such documents have been reviewed by it and appear to relate to such Mortgage
Loan. The Trustee, or the applicable Custodian on behalf of the Trustee, shall
make sure that the documents are executed and endorsed, but shall be under
no
duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that the same are valid,
binding, legally effective, properly endorsed, genuine, enforceable or
appropriate for the represented purpose or that they have actually been recorded
or are in recordable form or that they are other than what they purport to
be on
their face. Neither the Trustee nor any Custodian shall have any responsibility
for verifying the genuineness or the legal effectiveness of or authority for
any
signatures of or on behalf of any party or endorser.
(c) If
in the
course of the review described in paragraph (b) above the Trustee or the
applicable Custodian discovers any document or documents constituting a part
of
a Mortgage File that is missing, does not appear regular on its face (i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material Defect”), the Trustee, or the applicable Custodian on behalf
of the Trustee, shall promptly identify the Mortgage Loan to which such Material
Defect relates in the Interim Certification delivered to the Depositor, the
Master Servicer and the Trustee. Within 90 days of its receipt of such notice,
the Transferor, or if the Transferor does not do so, the Depositor shall be
required to cure such Material Defect (and, in such event, the Depositor shall
provide the Trustee with an Officer’s Certificate confirming that such cure has
been effected). If the applicable Transferor or the Depositor, as applicable,
does not so cure such Material Defect, it shall, if a loss has been incurred
with respect to such Mortgage Loan that would, if such Mortgage Loan were not
purchased from the Trust Fund, constitute a Realized Loss, and such loss is
attributable to the failure of the applicable Transferor or the Depositor to
cure such Material Defect, repurchase the related Mortgage Loan from the Trust
Fund at the Purchase Price. A loss shall be deemed to be attributable to the
failure of the applicable Transferor or the Depositor to cure a Material Defect
if, as determined by the Depositor, upon mutual agreement with the Master
Servicer acting in good faith, absent such Material Defect, such loss would
not
have been incurred. Within the two-year period following the Closing Date,
the
Depositor may, in lieu of repurchasing a Mortgage Loan pursuant to this Section
2.02, substitute for such Mortgage Loan a Qualifying Substitute Mortgage Loan
subject to the provisions of Section 2.05. The failure of the Trustee or the
applicable Custodian to give the notice contemplated herein within 45 days
after
the Closing Date shall not affect or relieve the Depositor of its obligation
to
repurchase any Mortgage Loan pursuant to this Section 2.02 or any other Section
of this Agreement requiring the repurchase of Mortgage Loans from the Trust
Fund.
56
(d) Within
180 days following the Closing Date, the Trustee, or the applicable Custodian,
shall deliver to the Trustee, the Depositor and the Master Servicer a Final
Certification substantially in the form annexed hereto as Exhibit B-3 (or in
the
form annexed to the applicable Custodial Agreement as Exhibit B-3, as applicable
evidencing the completeness of the Mortgage Files in its possession or control,
with any exceptions noted thereto.
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Fund, the Trustee or the Certificateholders of any unsatisfied duty, claim
or
other liability on any Mortgage Loan or to any Mortgagor.
(f) Each
of
the parties hereto acknowledges that each Custodian shall perform the applicable
review of the Mortgage Loans covered by its Custodial Agreement and deliver
the
respective certifications thereof as provided in this Section 2.02.
Section 2.03. |
Representations
and Warranties of the
Depositor.
|
(a) The
Depositor hereby represents and warrants to the Trustee, for the benefit of
Certificateholders, and to the Master Servicer, as of the Closing Date or such
other date as is specified, that:
(i) the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement,
and
to create the trust pursuant hereto;
(ii) the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
(iii) the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or taken
prior to the date hereof;
57
(iv) this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the Trustee and the Master
Servicer, constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms except as such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened or likely to be asserted against or affecting the Depositor, before
or by any court, administrative agency, arbitrator or governmental body (A)
with
respect to any of the transactions contemplated by this Agreement or (B) with
respect to any other matter which in the judgment of the Depositor will be
determined adversely to the Depositor and will if determined adversely to the
Depositor materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to perform
its obligations under this Agreement; and
(vi) immediately
prior to the transfer and assignment of the Mortgage Loans to the Trustee,
the
Depositor was the sole owner of record and holder of each Mortgage Loan, and
the
Depositor had good and marketable title thereto, and had full right to transfer
and sell each Mortgage Loan to the Trustee free and clear, subject only to
(1)
liens of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of such Mortgage acceptable to mortgage lending institutions in the
area in which the related Mortgaged Property is located and specifically
referred to in the lender’s Title Insurance Policy or attorney’s opinion of
title and abstract of title delivered to the originator of such Mortgage Loan,
and (3) such other matters to which like properties are commonly subject which
do not, individually or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage, of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement.
(b) The
representations and warranties of each Transferor with respect to the related
Mortgage Loans in the applicable Transfer Agreement, which have been assigned
to
the Trustee hereunder, were made as of the date specified in the applicable
Transfer Agreement (or underlying agreement, if such Transfer Agreement is
in
the form of an assignment of a prior agreement). To the extent that any fact,
condition or event with respect to a Mortgage Loan constitutes a breach of
both
(i) a representation or warranty of the applicable Transferor under the
applicable Transfer Agreement and (ii) a representation or warranty of Xxxxxx
Holdings under the Mortgage Loan Sale Agreement, the only right or remedy of
the
Trustee or of any Certificateholder shall be the Trustee’s right to enforce the
obligations of the applicable Transferor under any applicable representation
or
warranty made by it. The Trustee acknowledges that Xxxxxx Holdings shall have
no
obligation or liability with respect to any breach of a representation or
warranty made by it with respect to the Mortgage Loans if the fact, condition
or
event constituting such breach also constitutes a breach of a representation
or
warranty made by the applicable Transferor in the applicable Transfer Agreement,
without regard to whether such Transferor fulfills its contractual obligations
in respect of such representation or warranty. The Trustee further acknowledges
that the Depositor shall have no obligation or liability with respect to any
breach of any representation or warranty with respect to the Mortgage Loans
(except as set forth in Section 2.03(a)(vi)) under any
circumstances.
58
(c) With
respect to the Underlying Certificates, the Depositor hereby represents and
warrants to the Trustee for the benefit of the Certificateholders, as of the
Closing Date or such other date as is specified, that:
(i) This
Agreement creates a valid and continuing ownership interest in the Account
Property in favor of the Trustee. If the transfer and assignment of the
Underlying Certificates contemplated by this Agreement is deemed to be other
than a sale notwithstanding the intent of the parties hereto, this Agreement
creates a valid and continuing security interest (as defined in the Relevant
UCC) in the Account Property in favor of the Trustee, which security interest
is
prior to all other security interests, and is enforceable as such as against
creditors of and purchasers from the Depositor;
(ii) All
of
the Account Property has been and will have been credited to one of the
Securities Accounts on and after the Reference Date. The Securities Intermediary
for each Securities Account has agreed to retain all assets credited to the
Securities Accounts as “financial assets” within the meaning of the Relevant
UCC;
(iii) It
is the
intention of the Depositor that the Trustee owns and has good and marketable
title to the Account Property free and clear of any lien, claim or encumbrance
of any Person. If the transfer and assignment of the Underlying Certificates
contemplated by this Agreement is deemed to be other than a sale,
notwithstanding the intent of the parties hereto, the Depositor would own and
have good and marketable title to the Account Property free and clear of any
lien, claim or encumbrance of any Person (other than a security interest in
favor of the Trustee);
(iv) The
Depositor has received all consents and approvals required by the terms of
the
Account Property for the transfer to the Trustee of its interest and rights
in
the Account Property hereunder;
(v) The
Depositor has taken all steps necessary to cause the Securities Intermediary
to
identify in its records the Trustee as the person having a Security Entitlement
for each of the Securities Accounts;
(vi) Other
than the interest granted to the Trustee pursuant to this Agreement, the
Depositor has not pledged, assigned, sold or granted a security interest in,
or
otherwise conveyed any of the Account Property. The Depositor has not authorized
the filing of and is not aware of any financing statements against the Depositor
that include a description of collateral covering the Account Property other
than any financing statement relating to the interest granted to the Trustee
hereunder or that has been terminated. The Depositor is not aware of any
judgment or tax lien filings against the Depositor; and
59
(vii) The
Securities Accounts are not in the name of any person other than the Trustee.
The Depositor has not consented to the Securities Intermediary of any Securities
Account to comply with entitlement orders of any person other than the
Trustee.
Section 2.04. |
Discovery
of Breach.
|
It
is
understood and agreed that the representations and warranties (i) of the
Depositor set forth in Section 2.03 hereof, (ii) of Xxxxxx Holdings set forth
in
the Mortgage Loan Sale Agreement and assigned to the Trustee by the Depositor
hereunder and (iii) of each Transferor, assigned by Xxxxxx Holdings to the
Depositor pursuant to the Mortgage Loan Sale Agreement and assigned to the
Trustee by the Depositor hereunder, shall each survive delivery of the Mortgage
Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and
shall continue throughout the term of this Agreement. Upon discovery by any
of
the Depositor, the Master Servicer or the Trustee of a breach of any of such
representations and warranties that adversely and materially affects the value
of the related Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties. Within 90 days of the discovery
of a
breach of any representation or warranty given to the Trustee by the Depositor,
any Transferor or Xxxxxx Holdings and assigned to the Trustee hereunder, the
Depositor, such Transferor or Xxxxxx Holdings shall either (a) cure such breach
in all material respects, (b) repurchase such Mortgage Loan or any property
acquired in respect thereof from the Trustee at the Purchase Price or (c) within
the two year period following the Closing Date, substitute a Qualifying
Substitute Mortgage Loan for the affected Mortgage Loan. In the event of the
discovery of a breach of any representation and warranty of any Transferor
assigned to the Trustee, the Trustee shall enforce its rights under the
applicable Transfer Agreement and the Mortgage Loan Sale Agreement for the
benefit of the Certificateholders. As provided in the Mortgage Loan Sale
Agreement, if any Transferor substitutes for a Mortgage Loan for which there
is
a breach of any representations and warranties in the related Transfer Agreement
which adversely and materially affects the value of such Mortgage Loan and
such
substitute mortgage loan is not a Qualifying Substitute Mortgage Loan, under
the
terms of the Mortgage Loan Sale Agreement, Xxxxxx Holdings will, in exchange
for
such Substitute Mortgage Loan, either (i) provide the applicable Purchase
Price for the affected Mortgage Loan or (ii) within two years of the
Closing Date, substitute such affected Mortgage Loan with a Qualifying
Substitute Mortgage Loan.
Section 2.05. |
Repurchase,
Purchase or Substitution of Mortgage
Loans.
|
(a) With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement, by Xxxxxx Holdings pursuant to the Mortgage Loan Sale Agreement
or by
any Transferor pursuant to the applicable Transfer Agreement, the principal
portion of the funds received by the Trustee in respect of such repurchase
of a
Mortgage Loan will be considered a Principal Prepayment and shall be deposited
in the Collection Account. The Trustee, upon receipt of the full amount of
the
Purchase Price for a Deleted Mortgage Loan, or upon its receipt of notification
from the applicable Custodian that it has received the Mortgage File for a
Qualifying Substitute Mortgage Loan substituted for a Deleted Mortgage Loan
(and
any applicable Substitution Amount), shall release or cause to be released
and
reassigned to the Depositor, Xxxxxx Holdings or the applicable Transferor,
as
applicable, the related Mortgage File for the Deleted Mortgage Loan and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty, as shall be necessary to vest
in
such party or its designee or assignee title to any Deleted Mortgage Loan
released pursuant hereto, free and clear of all security interests, liens and
other encumbrances created by this Agreement, which instruments shall be
prepared by the applicable Servicer or the Trustee (or its custodian), and
the
Trustee shall have no further responsibility with respect to the Mortgage File
relating to such Deleted Mortgage Loan. The Mortgage Loan Seller indemnifies
and
holds the Trust Fund, the Trustee, the Depositor and each Certificateholder
harmless against any and all taxes, claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, fees and expenses that the Trust Fund, the Trustee, the Depositor and
any
Certificateholder may sustain in connection with any actions of the Mortgage
Loan Seller relating to a repurchase of a Mortgage Loan other than in compliance
with the terms of this Section 2.05 and the Mortgage Loan Sale Agreement, to
the
extent that any such action causes (i) any federal or state tax to be imposed
on
the Trust Fund, including without limitation, any federal tax imposed on
“prohibited transactions” under Section 860F(2) of the Code, or (ii) any REMIC
created hereunder to fail to qualify as a REMIC at any time that any Certificate
is outstanding.
60
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Trustee (or its custodian) pursuant to the terms of this Article II in exchange
for a Deleted Mortgage Loan: (i) the Depositor, the applicable Transferor or
Xxxxxx Holdings must deliver to the Trustee (or its custodian) the Mortgage
File
for the Qualifying Substitute Mortgage Loan containing the documents set forth
in Section 2.01(b) along with a written certification certifying as to the
delivery of such Mortgage File and containing the granting language set forth
in
Section 2.01(a); and (ii) the Depositor will be deemed to have made, with
respect to such Qualifying Substitute Mortgage Loan, each of the representations
and warranties made by it with respect to the related Deleted Mortgage Loan.
As
soon as practicable after the delivery of any Qualifying Substitute Mortgage
Loan hereunder, the Trustee, at the expense of the Depositor and at the
direction and with the cooperation of the applicable Servicer, shall, with
respect to a Qualifying Substitute Mortgage Loan that is a Non-MERS Mortgage
Loan, cause the Assignment of Mortgage to be recorded by the Servicer if
required pursuant to Section 2.01(c)(i), or the Servicer shall, with respect
to
a Qualifying Substitute Mortgage Loan that is a MERS Mortgage Loan, cause to
be
taken such actions as are necessary to cause the Trustee to be clearly
identified as the owner of each such Mortgage Loan on the records of MERS if
required pursuant to Section 2.01(c)(ii).
(c) Notwithstanding
any other provision of this Agreement, the right to substitute Mortgage Loans
pursuant to this Article II shall be subject to the additional limitations
that
no substitution of a Qualifying Substitute Mortgage Loan for a Deleted Mortgage
Loan shall be made unless the Trustee has received an Opinion of Counsel (at
the
expense of the party seeking to make the substitution) that, under current
law,
such substitution will not (A) affect adversely the status of any REMIC
established hereunder as a REMIC, or of the related “regular interests” as
“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.
61
Section 2.06. |
Grant
Clause.
|
(a) It
is
intended that the conveyance of the Depositor’s right, title and interest in and
to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be construed as, a sale of such property and not a grant
of a security interest to secure a loan. However, if such conveyance is deemed
to be in respect of a loan, it is intended that: (1) the rights and obligations
of the parties shall be established pursuant to the terms of this Agreement;
(2)
the Depositor hereby grants to the Trustee for the benefit of the Holders of
the
Certificates a first priority security interest to secure repayment of an
obligation in an amount equal to the aggregate Class Principal Amount of the
Certificates (or the aggregate principal balance of the Lower Tier REMIC I
Uncertificated Regular Interests, if applicable) in all of the Depositor’s
right, title and interest in, to and under, whether now owned or hereafter
acquired, the Trust Fund and all proceeds of any and all property constituting
the Trust Fund to secure payment of the Certificates or Lower Tier REMIC I
Uncertificated Regular Interests, as applicable; and (3) this Agreement shall
constitute a security agreement under applicable law. If such conveyance is
deemed to be in respect of a loan and the Trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person holding any
Certificate or Lower Tier REMIC I Uncertificated Regular Interests, as
applicable, the security interest created hereby shall continue in full force
and effect and the Trustee shall be deemed to be the collateral agent for the
benefit of such Person, and all proceeds shall be distributed as herein
provided.
(b) The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will
be
maintained as such throughout the term of this Agreement. The Depositor will,
at
its own expense, make all initial filings on or about the Closing Date and
shall
forward a copy of such filing or filings to the Trustee. Without limiting the
generality of the foregoing, the Depositor shall prepare and forward for filing,
or shall cause to be forwarded for filing, at the expense of the Depositor,
all
filings necessary to maintain the effectiveness of any original filings
necessary under the Relevant UCC to perfect the Trustee’s security interest in
or lien on the Mortgage Loans, including without limitation (x) continuation
statements, and (y) such other statements as may be occasioned by (1) any change
of name of the Mortgage Loan Seller, the Depositor or the Trustee, (2) any
change of location of the jurisdiction of organization of the Mortgage Loan
Seller or the Depositor, (3) any transfer of any interest of the Mortgage Loan
Seller or the Depositor in any Mortgage Loan or (4) any change under the
Relevant UCC or other applicable laws. Neither the Mortgage Loan Seller nor
the
Depositor shall organize under the law of any jurisdiction other than the State
under which each is organized as of the Closing Date (whether changing its
jurisdiction of organization or organizing under an additional jurisdiction)
without giving 30 days prior written notice of such action to its transferee,
including the Trustee. Before effecting such change, the Mortgage Loan Seller
or
the Depositor proposing to change its jurisdiction of organization shall prepare
and file in the appropriate filing office any financing statements or other
statements necessary to continue the perfection of the interests of its
transferees, including the Trustee, in the Mortgage Loans. In connection with
the transactions contemplated by this Agreement, each of the Mortgage Loan
Seller and the Depositor authorizes its transferee to file in any filing office
any initial financing statements, any amendments to financing statements, any
continuation statements, or any other statements or filings described in this
paragraph (b).
62
ARTICLE
III
THE
CERTIFICATES
Section 3.01. |
The
Certificates.
|
(a) The
Certificates shall be issuable in registered form only and shall be securities
governed by Article 8 of the UCC. The Book-Entry Certificates will be evidenced
by one or more certificates, beneficial ownership of which will be held in
the
dollar denominations in Certificate Principal Amount or Notional Amount, as
applicable, or in the Percentage Interests, specified herein. Each Class of
Book-Entry Certificates shall be issued in the minimum denominations in
Certificate Principal Amount (or Notional Amount) or Percentage Interest
specified in the Preliminary Statement hereto and in integral multiples of
$1 or
5% (in the case of Certificates issued in Percentage Interests) in excess
thereof. Each Class of Non-Book Entry Certificates other than the Residual
Certificate shall be issued in definitive, fully registered form in the minimum
denominations in Certificate Principal Amount (or Notional Amount) specified
in
the Preliminary Statement hereto and in integral multiples of $1 in excess
thereof. The Residual Certificates shall each be issued as a single Certificate
and maintained in definitive, fully registered form in a minimum denomination
equal to 100% of the Percentage Interest of each such Class. The Class P and
Class X Certificates shall be maintained in definitive, fully registered form
and shall be issued in a minimum denomination equal to 10% of the Percentage
Interest of such Class. The Certificates may be issued in the form of
typewritten certificates. One Certificate of each Class of Certificates other
than any Class of Residual Certificates may be issued in any denomination in
excess of the minimum denomination.
(b) The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Trustee by an authorized officer. Each Certificate shall, on original issue,
be
authenticated by the Trustee upon the order of the Depositor upon receipt by
the
Trustee (or the Custodian on its behalf) of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein,
executed by an authorized officer of the Trustee or the Authenticating Agent,
if
any, by manual signature, and such certification upon any Certificate shall
be
conclusive evidence, and the only evidence, that such Certificate has been
duly
authenticated and delivered hereunder. All Certificates shall be dated the
date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates executed
by the Depositor to the Trustee or the Authenticating Agent for authentication
and the Trustee or the Authenticating Agent shall authenticate and deliver
such
Certificates as in this Agreement provided and not otherwise.
63
(c) The
Class
B5(1-2), Class B6(1-2), Class B7(1-2), Class 3B4, Class 3B5 or Class 3B6
Certificates offered and sold in reliance on the exemption from registration
under Rule 144A shall be issued initially in the form of one or more permanent
global Certificates in definitive, fully registered form without interest
coupons with the applicable legends set forth in Exhibit A added to the forms
of
such Certificates (each, a “Restricted Global Security”), which, in the case of
the Class B5(1-2), Class B6(1-2), Class B7(1-2), Class 3B4, Class 3B5 or Class
3B6 Certificates, shall be deposited on behalf of the subscribers for such
Certificates represented thereby with the Trustee, as custodian for DTC and
registered in the name of a nominee of DTC, duly executed and authenticated
by
the Trustee as hereinafter provided. The aggregate principal amounts of the
Restricted Global Securities may from time to time be increased or decreased
by
adjustments made on the records of the Trustee or DTC or its nominee, as the
case may be, as hereinafter provided.
The
Class
B5(1-2), Class B6(1-2), Class B7(1-2), Class 3B4, Class 3B5 or Class 3B6
Certificates sold in offshore transactions in reliance on Regulation S shall
be
issued initially in the form of one or more permanent global Certificates in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A hereto added to the forms of such Certificates
(each, a “Regulation S Global Security”), which, in the case of the Class
B5(1-2), Class B6(1-2), Class B7(1-2), Class 3B4, Class 3B5 or Class 3B6
Certificates, shall be deposited on behalf of the subscribers for such
Certificates represented thereby with the Trustee, as custodian for DTC and
registered in the name of a nominee of DTC, duly executed and authenticated
by
the Trustee as hereinafter provided. The aggregate principal amounts of the
Regulation S Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee, or DTC or its nominee, as
the
case may be, as hereinafter provided.
The
Class
Class B5(1-2), Class B6(1-2), Class B7(1-2), Class 3B4, Class 3B5 or Class
3B6
Certificates sold to an “accredited investor” under Rule 501(a)(1), (2), (3) or
(7) under the Securities Act shall be issued initially in the form of one or
more Definitive Certificates.
Section 3.02. |
Registration.
|
The
Trustee is hereby appointed, and hereby accepts its appointment as, Certificate
Registrar in respect of the Certificates (and, after a Section 7.01(c) Purchase
Event, the Lower Tier REMIC 1 Uncertificated Regular Interests, if applicable)
and shall maintain books for the registration and for the transfer of
Certificates (and, after a Section 7.01(c) Purchase Event, the Lower Tier REMIC
1 Uncertificated Regular Interests, if applicable) (the “Certificate Register”).
The Trustee may appoint a bank or trust company to act as Certificate Registrar.
A registration book shall be maintained for the Certificates (and the Lower
Tier
REMIC 1 Uncertificated Regular Interests, as the case may be) collectively.
The
Certificate Registrar may resign or be discharged or removed and a new successor
may be appointed in accordance with the procedures and requirements set forth
in
Sections 6.06 and 6.07 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor Trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Master Servicer, any bank or trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided,
however,
that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
64
Upon
the
occurrence of a Section 7.01(c) Purchase Event, the Master Servicer shall
provide the Trustee with written notice of the identity of any transferee of
the
Master Servicer’s interest in the Lower Tier REMIC 1 Uncertificated Regular
Interests, which notice shall contain a certification that such transferee
is a
permitted LTURI-holder. The Lower Tier REMIC 1 Uncertificated Regular Interests
may only be transferred in whole and not in part to no more than one
LTURI-holder at a time who is either (1) an affiliate of the Master Servicer
or
(2) a trustee of a privately placed securitization. The Trustee and the
Depositor shall treat the Person in whose name the Lower Tier REMIC 1
Uncertificated Regular Interests are registered on the books of the Certificate
Registrar as the LTURI-holder for all purposes hereunder.
Section 3.03. |
Transfer
and Exchange of Certificates.
|
(a) A
Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the Certificate
Registrar duly endorsed or accompanied by an assignment duly executed by such
Holder or his duly authorized attorney in such form as shall be satisfactory
to
the Certificate Registrar. Upon the transfer of any Certificate in accordance
with the preceding sentence, the Trustee shall execute, and the Trustee or
any
Authenticating Agent shall authenticate and deliver to the transferee, one
or
more new Certificates of the same Class and evidencing, in the aggregate, the
same aggregate Certificate Principal Amount or Percentage Interest as the
Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any
tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A
Certificate may be exchanged by the Holder thereof for any number of new
Certificates of the same Class, in authorized denominations, representing in
the
aggregate the same Certificate Principal Amount or Percentage Interest as the
Certificate surrendered, upon surrender of the Certificate to be exchanged
at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute, and
the
Trustee or the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
65
(c) By
acceptance of a Restricted Certificate or a Regulation S Global Security,
whether upon original issuance or subsequent transfer, each Holder of such
a
Certificate acknowledges the restrictions on the transfer of such Certificate
set forth thereon and agrees that it will transfer such a Certificate only
as
provided herein. In addition, each Holder of a Regulation S Global Security
shall be deemed to have represented and warranted to the Trustee, the
Certificate Registrar and any of their respective successors that: (i) such
Person (A) if the offer or sale was made to it prior to the expiration of
the 40-day distribution compliance period within the meaning of Regulation
S, is
not a U.S. person within the meaning of Regulation S and (B) was, at the time
the buy order was originated, outside the United States and (ii) such Person
understands that such Certificates have not been registered under the Securities
Act, and that (x) until the expiration of the 40-day distribution compliance
period (within the meaning of Regulation S), no offer, sale, pledge or other
transfer of such Certificates or any interest therein shall be made in the
United States or to or for the account or benefit of a U.S. person (each as
defined in Regulation S), (y) if in the future it decides to offer, resell,
pledge or otherwise transfer such Certificates, such Certificates may be
offered, resold, pledged or otherwise transferred only (A) to a person which
the
seller reasonably believes is a “qualified institutional buyer” (a “QIB”) as
defined in Rule 144A under the Securities Act, that is purchasing such
Certificates for its own account or for the account of a qualified institutional
buyer to which notice is given that the transfer is being made in reliance
on
Rule 144A or (B) in an offshore transaction (as defined in Regulation S) in
compliance with the provisions of Regulation S, in each case in compliance
with
the requirements of this Agreement; and it will notify such transferee of the
transfer restrictions specified in this Section.
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor or the Placement Agent or to
an
affiliate (as defined in Rule 405 under the Securities Act) of the Depositor
or
the Placement Agent or (y) being made to a QIB by a transferor that has provided
the Trustee with a certificate in the form of Exhibit F hereto; and
(ii) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is being made to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Securities Act by a transferor who
furnishes to the Trustee a letter of the transferee substantially in the form
of
Exhibit G hereto.
66
(d) No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person or shall be effective unless the Trustee
has received (A) a certificate substantially in the form of Exhibit H hereto
(or
Exhibit D-1, in the case of a Residual Certificate) from such transferee or
(B)
an Opinion of Counsel reasonably satisfactory to the Trustee to the effect
that
the purchase and holding of such a Certificate will not constitute or result
in
prohibited transactions under Title I of ERISA or Section 4975 of the Code
and
will not subject the Trustee, the Master Servicer or the Depositor to any
obligation in addition to those undertaken in the Agreement; provided,
however,
that
the Trustee will not require such certificate or opinion in the event that,
as a
result of a change of law or otherwise, the Trustee receives an Opinion of
Counsel to the effect that the purchase and holding of an ERISA-Restricted
Certificate by a Plan or a Person that is purchasing or holding such a
Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under Title I of ERISA or Section 4975 of the Code.
Each
Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate
shall be deemed to have made the representations set forth in Exhibit H. The
preparation and delivery of the certificate and opinions referred to above
shall
not be an expense of the Trust Fund, the Trustee, the Master Servicer or the
Depositor.
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates. The Trustee shall have no
obligation to monitor transfers of Book-Entry Certificates that are
ERISA-Restricted Certificates and shall have no liability for transfers of
such
Certificates in violation of the transfer restrictions. The Trustee shall be
under no liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
3.03(d) or for making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements. The Trustee shall be entitled,
but
not obligated, to recover from any Holder of any ERISA-Restricted Certificate
that was in fact a Plan or a Person acting on behalf of a Plan any payments
made
on such ERISA-Restricted Certificate at and after either such time. Any such
payments so recovered by the Trustee shall be paid and delivered by the Trustee
to the last preceding Holder of such Certificate that is not such a Plan or
Person acting on behalf of a Plan.
No
transfer of an ERISA-Restricted Trust Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of
such
Certificate, substantially in the form set forth in Exhibit H, to the effect
that either (i) such transferee is neither a Plan nor a Person acting on behalf
of any such Plan or using the assets of any such Plan to effect such transfer
or
(ii) the acquisition and holding of the ERISA-Restricted Trust Certificate
are
eligible for exemptive relief under Prohibited Transaction Class Exemption
(“PTCE”) 84-14, XXXX 00-0, XXXX 00-00, XXXX 95-60 or PTCE 96-23. Notwithstanding
anything else to the contrary herein, any purported transfer of an
ERISA-Restricted Trust Certificate on behalf of a Plan without the delivery
to
the Trustee of a representation letter as described above shall be void and
of
no effect. If the ERISA-Restricted Trust Certificate is a Book-Entry
Certificate, the transferee will be deemed to have made a representation as
provided in clause (i) or (ii) of this paragraph, as applicable.
67
If
any
ERISA-Restricted Trust Certificate, or any interest therein, is acquired or
held
in violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Trust Certificate, or interest therein, was effected in
violation of the provisions of the preceding paragraph shall indemnify to the
extent permitted by law and hold harmless the Depositor, the Trustee, and the
Master Servicer from and against any and all liabilities, claims, costs or
expenses incurred by such parties as a result of such acquisition or
holding.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Trust Certificate that is in fact not permitted
by this Section 3.03(d)(ii) or for making any payments due on such Certificate
to the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the transfer was registered
by
the Trustee in accordance with the foregoing requirements.
(e) As
a
condition of the registration of transfer or exchange of any Certificate, the
Certificate Registrar may require the certified taxpayer identification number
of the owner of the Certificate and the payment of a sum sufficient to cover
any
tax or other governmental charge imposed in connection therewith; provided,
however,
that
the Certificate Registrar shall have no obligation to require such payment
or to
determine whether or not any such tax or charge may be applicable. No service
charge shall be made to the Certificateholder for any registration, transfer
or
exchange of Certificate.
(f) Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person
that
holds a Residual Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Trustee with an effective Internal Revenue Service Form W-8ECI or successor
form
at the time and in the manner required by the Code (any such person who is
not
covered by clause (A) or (B) above is referred to herein as a “Non-permitted
Foreign Holder”).
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of a Residual Certificate, the proposed transferee shall deliver
to
the Trustee an affidavit in substantially the form attached hereto as Exhibit
D-1 representing and warranting, among other things, that such transferee is
neither a Disqualified Organization, an agent or nominee acting on behalf of
a
Disqualified Organization, nor a Non-permitted Foreign Holder (any such
transferee, a “Permitted Transferee”) and the proposed transferor shall deliver
to the Trustee an affidavit in substantially the form attached hereto as Exhibit
D-2. In addition, the Trustee may (but shall have no obligation to) require,
prior to and as a condition of any such transfer, the delivery by the proposed
transferee of an Opinion of Counsel, addressed to the Depositor and the Trustee
satisfactory in form and substance to the Depositor, that such proposed
transferee or, if the proposed transferee is an agent or nominee, the proposed
beneficial owner, is not a Disqualified Organization, agent or nominee thereof,
or Non-permitted Foreign Holder. Notwithstanding the registration in the
Certificate Register of any transfer, sale, or other disposition of a Residual
Certificate to a Disqualified Organization, an agent or nominee thereof, or
Non-permitted Foreign Holder, such registration shall be deemed to be of no
legal force or effect whatsoever and such Disqualified Organization, agent
or
nominee thereof, or Non-permitted Foreign Holder shall not be deemed to be
a
Certificateholder for any purpose hereunder, including, but not limited to,
the
receipt of distributions on such Residual Certificate. The Trustee shall not
be
under any liability to any person for any registration or transfer of a Residual
Certificate to a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder or for the maturity of any payments due on such
Residual Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of the Agreement, so long as the
transfer was effected in accordance with this Section 3.03(f), unless the
Trustee shall have actual knowledge at the time of such transfer or the time
of
such payment or other action that the transferee is a Disqualified Organization,
agent or nominee thereof, or Non-permitted Foreign Holder. The Trustee shall
be
entitled to recover from any Holder of a Residual Certificate that was a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder at the time it became a Holder or any subsequent time it became a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder, all payments made on such Residual Certificate at and after either
such
times (and all costs and expenses, including but not limited to attorneys’ fees,
incurred in connection therewith). Any payment (not including any such costs
and
expenses) so recovered by the Trustee shall be paid and delivered to the last
preceding Holder of such Residual Certificate.
68
If
any
purported transferee shall become a registered Holder of a Residual Certificate
in violation of the provisions of this Section 3.03(f), then upon receipt of
written notice to the Trustee that the registration of transfer of such Residual
Certificate was not in fact permitted by this Section 3.03(f), the last
preceding Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of such registration of transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not permitted
by this Section 3.03(f), for making any payment due on such Certificate to
the
registered Holder thereof or for taking any other action with respect to such
Holder under the provisions of this Agreement so long as the transfer was
registered upon receipt of the affidavit described in the preceding paragraph
of
this Section 3.03(f).
(g) Each
Holder of a Residual Certificate, by such Holder’s acceptance thereof, shall be
deemed for all purposes to have consented to the provisions of this
section.
(h) Notwithstanding
any provision to the contrary herein, so long as a Global Security representing
any of the Class B5(1-2), Class B6(1-2), Class B7(1-2), Class 3B4, Class 3B5
or
Class 3B6 Certificates remains outstanding and is held by or on behalf of DTC,
transfers of a Global Security representing any such Certificates, in whole
or
in part, shall only be made in accordance with Section 3.01 and this Section
3.03(h).
(A) Subject
to clauses (B) and (C) of this Section 3.03(h), transfers of a Global Security
representing any of the Class B5(1-2), Class B6(1-2), Class B7(1-2), Class
3B4,
Class 3B5 or Class 3B6 Certificates shall be limited to transfers of such Global
Security, in whole or in part, to nominees of DTC or to a successor of DTC
or
such successor’s nominee.
69
(B) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited with
or on behalf of DTC wishes at any time to exchange its interest in such
Restricted Global Security for an interest in a Regulation S Global Security,
or
to transfer its interest in such Restricted Global Security to a Person who
wishes to take delivery thereof in the form of an interest in a Regulation
S
Global Security, such holder, provided
such
holder is not a U.S. person, may, subject to the rules and procedures of DTC,
exchange or cause the exchange of such interest for an equivalent beneficial
interest in the Regulation S Global Security. Upon receipt by the Trustee,
as
Certificate Registrar, of (I) instructions from DTC directing the Trustee,
as
Certificate Registrar, to cause to be credited a beneficial interest in a
Regulation S Global Security in an amount equal to the beneficial interest
in
such Restricted Global Security to be exchanged but not less than the minimum
denomination applicable to such holder’s Certificates held through a Regulation
S Global Security, (II) a written order given in accordance with DTC’s
procedures containing information regarding the participant account of DTC
and,
in the case of a transfer pursuant to and in accordance with Regulation S,
the
Euroclear or Clearstream account to be credited with such increase and (III)
a
certificate in the form of Exhibit N-1 hereto given by the holder of such
beneficial interest stating that the exchange or transfer of such interest
has
been made in compliance with the transfer restrictions applicable to the
Regulation S Global Securities, including that the holder is not a U.S. person,
and pursuant to and in accordance with Regulation S, the Trustee, as Certificate
Registrar, shall reduce the principal amount of the Restricted Global Security
and increase the principal amount of the Regulation S Global Security by the
aggregate principal amount of the beneficial interest in the Restricted Global
Security to be exchanged, and shall instruct Euroclear or Clearstream, as
applicable, concurrently with such reduction, to credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in the Regulation S Global Security equal to the reduction in the
principal amount of the Restricted Global Security.
(C) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of DTC wishes at any time to transfer its interest in such
Regulation S Global Security to a Person who wishes to take delivery thereof
in
the form of an interest in a Restricted Global Security, such holder may,
subject to the rules and procedures DTC, exchange or cause the exchange of
such
interest for an equivalent beneficial interest in a Restricted Global Security.
Upon receipt by the Trustee, as Certificate Registrar, of (I) instructions
from
DTC directing the Trustee, as Certificate Registrar, to cause to be credited
a
beneficial interest in a Restricted Global Security in an amount equal to the
beneficial interest in such Regulation S Global Security to be exchanged but
not
less than the minimum denomination applicable to such holder’s Certificates held
through a Restricted Global Security, to be exchanged, such instructions to
contain information regarding the participant account with DTC to be credited
with such increase, and (II) a certificate in the form of Exhibit N-2 hereto
given by the holder of such beneficial interest and stating, among other things,
that the Person transferring such interest in such Regulation S Global Security
reasonably believes that the Person acquiring such interest in a Restricted
Global Security is a QIB, is obtaining such beneficial interest in a transaction
meeting the requirements of Rule 144A and in accordance with any applicable
securities laws of any State of the United States or any other jurisdiction,
then the Trustee, as Certificate Registrar, will reduce the principal amount
of
the Regulation S Global Security and increase the principal amount of the
Restricted Global Security by the aggregate principal amount of the beneficial
interest in the Regulation S Global Security to be transferred and the Trustee,
as Certificate Registrar, shall instruct DTC, concurrently with such reduction,
to credit or cause to be credited to the account of the Person specified in
such
instructions a beneficial interest in the Restricted Global Security equal
to
the reduction in the principal amount of the Regulation S Global
Security.
70
(D) Other
Exchanges.
In the
event that a Global Security is exchanged for Certificates in definitive
registered form without interest coupons, pursuant to Section 3.09(c) hereof,
such Certificates may be exchanged for one another only in accordance with
such
procedures as are substantially consistent with the provisions above (including
certification requirements intended to insure that such transfers comply with
Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or are to non-U.S.
persons in compliance with Regulation S under the Securities Act, as the case
may be), and as may be from time to time adopted by the Trustee.
(E) Restrictions
on U.S. Transfers.
Transfers of interests in a Regulation S Global Security to U.S. persons (as
defined in Regulation S) shall be limited to transfers made pursuant to the
provisions of Section 3.03(h)(C).
Section 3.04. |
Cancellation
of Certificates.
|
Any
Certificate surrendered for registration of transfer or exchange shall be
cancelled and retained in accordance with normal retention policies with respect
to cancelled certificates maintained by the Trustee or the Certificate
Registrar.
Section 3.05. |
Replacement
of Certificates.
|
If
(i)
any Certificate is mutilated and is surrendered to the Trustee or any
Authenticating Agent or (ii) the Trustee or any Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee or the Authenticating Agent
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Depositor and any Authenticating
Agent that such destroyed, lost or stolen Certificate has been acquired by
a
bona
fide
purchaser, the Trustee shall execute and the Trustee or any Authenticating
Agent
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Certificate Principal Amount (or Notional Amount). Upon the issuance
of any new Certificate under this Section 3.05, the Trustee and Authenticating
Agent may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or the Authenticating
Agent) connected therewith. Any replacement Certificate issued pursuant to
this
Section 3.05 shall constitute complete and indefeasible evidence of ownership
in
the applicable Trust Fund, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
71
Section 3.06. |
Persons
Deemed Owners.
|
Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar and
any
agent of any of them may treat the Person in whose name any Certificate is
registered upon the books of the Certificate Registrar as the owner of such
Certificate for the purpose of receiving distributions pursuant to Sections
5.01
and 5.02 and for all other purposes whatsoever, and neither the Depositor,
the
Master Servicer, the Trustee, the Certificate Registrar nor any agent of any
of
them shall be affected by notice to the contrary.
Section 3.07. |
Temporary
Certificates.
|
(a) Pending
the preparation of definitive Certificates, upon the order of the Depositor,
the
Trustee shall execute and shall authenticate and deliver temporary Certificates
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced
by
their execution of such Certificates.
(b) If
temporary Certificates are issued, the Depositor will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation
of
definitive Certificates, the temporary Certificates shall be exchangeable for
definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Trustee without charge to the Holder. Upon surrender
for
cancellation of any one or more temporary Certificates, the Trustee shall
execute and authenticate and deliver in exchange therefor a like aggregate
Certificate Principal Amount of definitive Certificates of the same Class in
the
authorized denominations. Until so exchanged, the temporary Certificates shall
in all respects be entitled to the same benefits under this Agreement as
definitive Certificates of the same Class.
Section 3.08. |
Appointment
of Paying Agent.
|
The
Trustee may appoint a Paying Agent (which may be the Trustee) for the purpose
of
making distributions to Certificateholders hereunder. The Trustee shall cause
such Paying Agent (if other than the Trustee) to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent will hold all sums held by it for the payment to
Certificateholders in an Eligible Account, on behalf of the Trustee, in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall
be paid to the Certificateholders. All funds remitted by the Trustee to any
such
Paying Agent for the purpose of making distributions shall be paid to
Certificateholders on each Distribution Date and any amounts not so paid shall
be returned on such Distribution Date to the Trustee. If the Paying Agent is
not
the Trustee, the Trustee shall cause to be remitted to the Paying Agent on
or
before the Business Day prior to each Distribution Date, by wire transfer in
immediately available funds, the funds to be distributed on such Distribution
Date. Any Paying Agent shall be either a bank or trust company or otherwise
authorized under law to exercise corporate trust powers. As of the
Closing Date, the Trustee is the Paying Agent.
72
At
any
time during the period that a Form 10-K is being filed with respect to the
Trust
in accordance with the Exchange Act and the rules and regulations of the
Commission, the Trustee shall not appoint a Paying Agent that is not the
Trustee
unless that Paying Agent first agrees in writing with the Trustee (i) to
deliver
an assessment of compliance and an accountant’s attestation in such manner and
at such times in compliance with Section 6.01(j) and (k) of this Agreement,
(ii)
to comply with the provisions of Section 6.01(l), 6.01(m), 6.20(e)(i) and
6.20(e)(iii) of this Agreement and (iii) to indemnify the Depositor and the
Master Servicer, and their respective directors, officers, employees and
agents
and the Trust Fund and hold each of them harmless as set forth in Section
6.01(n).
In
addition, the Paying Agent (if other than the Trustee) (i) may not be an
originator of Mortgage Loans, the Master Servicer, a Servicer, the Depositor
or
an affiliate of the Depositor unless the Paying Agent is in an institutional
trust department of the Paying Agent, (ii) must be authorized to exercise
corporate trust powers under the laws of its jurisdiction of organization and
(iii) must be rated at least “A/F1” by Fitch, if Fitch is a Rating Agency that
has rated the Paying Agent, or the equivalent rating by S&P. If no successor
Paying Agent shall have been appointed and shall have accepted appointment
within 60 days after the Paying Agent ceases to be the Paying Agent pursuant
to
this Section 3.08, then the Trustee shall perform the duties of the Paying
Agent
pursuant to this Agreement. The Trustee shall notify the Rating Agencies of
any
change of Paying Agent.
Section 3.09. |
Book-Entry
Certificates.
|
(i) Each
Class of Book-Entry Certificates, upon original issuance, shall be issued in
the
form of one or more typewritten Certificates representing the Book-Entry
Certificates, to be delivered to The Depository Trust Company, or its custodian,
the initial Clearing Agency, by, or on behalf of, the Depositor. The Book-Entry
Certificates shall initially be registered on the Certificate Register in the
name of the nominee of the Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner’s interest
in the Book-Entry Certificates, except as provided in Section 3.09(c). Unless
Definitive Certificates have been issued to Certificate Owners of Book-Entry
Certificates pursuant to Section 3.09(c):
(ii) the
provisions of this Section 3.09 shall be in full force and effect;
(iii) the
Depositor, the Master Servicer, the Paying Agent, the Certificate Registrar
and
the Trustee may deal with the Clearing Agency for all purposes (including the
making of distributions on the Book-Entry Certificates) as the authorized
representatives of the Certificate Owners and the Clearing Agency shall be
responsible for crediting the amount of such distributions to the accounts
of
such Persons entitled thereto, in accordance with the Clearing Agency’s normal
procedures;
(iv) to
the
extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall control;
and
73
(v) the
rights of Certificate Owners shall be exercised only through the Clearing Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever
notice or other communication to the Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued
to
Certificate Owners pursuant to Section 3.09(c), the Trustee shall give all
such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency.
(c) If
(i)
(A) the Depositor advises the Trustee in writing that the Clearing Agency is
no
longer willing or able to discharge properly its responsibilities with respect
to the Book-Entry Certificates, and (B) the Trustee or the Depositor is unable
to locate a qualified successor or (ii) after the occurrence of an Event of
Default, Certificate Owners representing beneficial interests aggregating not
less than 50% of the Class Principal Amount (or Class Notional Amount) of a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer’s Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in
the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify or cause the Certificate Registrar to
notify the Clearing Agency to effect notification to all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Depositor nor the Trustee shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates
all
references herein to obligations imposed upon or to be performed by the Clearing
Agency shall be deemed to be imposed upon and performed by the Trustee, to
the
extent applicable, with respect to such Definitive Certificates and the Trustee
shall recognize the holders of the Definitive Certificates as Certificateholders
hereunder. None of the Seller, the Depositor, the Underwriter, the Master
Servicer or the Trustee shall have any responsibility for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Book-Entry Certificates held by the Clearing Agency or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
74
ARTICLE
IV
ADMINISTRATION
OF THE TRUST FUND
Section 4.01. |
Collection
Account.
|
(a) On
the
Closing Date, the Master Servicer shall open and shall thereafter maintain
a
segregated account held in trust (the “Collection Account”), entitled “Aurora
Loan Services LLC, as Master Servicer, in trust for the benefit of the Holders
of Xxxxxx Mortgage Trust Mortgage Pass-Through Certificates, Series 2006-1.” The
Collection Account shall relate solely to the Certificates issued by the Trust
Fund hereunder, and funds in such Collection Account shall not be commingled
with any other monies.
(b) The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Master Servicer shall establish
a
new Collection Account that is an Eligible Account within 30 days and transfer
all funds on deposit in such existing Collection Account into such new
Collection Account.
(c) The
Master Servicer shall give to the Trustee prior written notice of the name
and
address of the depository institution at which the Collection Account is
maintained and the account number of such Collection Account. No later than
2:00
p.m. New York City time on each Deposit Date, the entire amount on deposit
in
the Collection Account (subject to permitted withdrawals set forth in Section
4.02), excluding any amounts that are not included in the Available Distribution
Amount for such Distribution Date (other than amounts due or reimbursable to
the
Trustee pursuant to this Agreement), shall be remitted to the Trustee for
deposit into the Certificate Account by wire transfer in immediately available
funds. The Master Servicer, at its option and with prior notice to the Trustee,
may choose to make daily remittances from the Collection Account to the Trustee
for deposit into the Certificate Account.
(d) The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than two Business Days following the Closing Date, any amounts
representing Scheduled Payments on the Mortgage Loans due after the Cut-off
Date
and received by the Master Servicer on or before the Closing Date. Thereafter,
the Master Servicer shall deposit or cause to be deposited in the Collection
Account on the earlier of the applicable Remittance Date and two Business Days
following receipt thereof, the following amounts received or payments made
by it
(other than in respect of principal of and interest on the Mortgage Loans due
on
or before the Cut-off Date):
(i) all
payments on account of principal, including Principal Prepayments, late
collections and any Prepayment Penalty Amounts with respect to those Mortgage
Loans for which the Mortgage Loan Seller owns the servicing rights, as indicated
in the Mortgage Loan Schedule, on the Mortgage Loans;
75
(ii) all
payments on account of interest on the Mortgage Loans (other than payments
due
prior to the Cut-off Date), net of the applicable Servicing Fee and Master
Servicing Fee with respect to each such Mortgage Loan, but only to the extent
of
the amount permitted to be withdrawn or withheld from the Collection Account
in
accordance with Sections 5.04 and 9.21;
(iii) any
unscheduled payment or other recovery with respect to a Mortgage Loan not
otherwise specified in this paragraph (d), including any Subsequent Recovery,
all Net Liquidation Proceeds with respect to the Mortgage Loans and REO
Property, and all amounts received in connection with the operation of any
REO
Property, net of any unpaid Servicing Fees and Master Servicing Fees with
respect to such Mortgage Loans, but only to the extent of the amount permitted
to be withdrawn or withheld from the Collection Account in accordance with
Sections 5.04 and 9.21; provided
that if
the applicable Servicer is also the Retained Interest Holder with respect to
any
Mortgage Loan, payments on account of interest on the Mortgage Loans as to
which
the Servicer is the Retained Interest Holder may also be made net of the related
Retained Interest with respect to each such Mortgage Loan.
(iv) all
Insurance Proceeds;
(v) all
Advances made by the Master Servicer or any Servicer pursuant to Section 5.04
or
the Servicing Agreement; and
(vi) all
proceeds of any Mortgage Loan purchased by any Person and any Substitution
Amounts related to any Qualifying Substitute Mortgage Loan.
(e) Funds
in
the Collection Account may be invested in Eligible Investments (selected by
and
at the written direction of the Master Servicer) which shall mature not later
than the earlier of (a) the Deposit Date or (b) the day on which the funds
in
such Collection Account are required to be remitted to the Trustee for deposit
into the Certificate Account, and any such Eligible Investment shall not be
sold
or disposed of prior to its maturity. All such Eligible Investments shall be
made in the name of the Master Servicer in trust for the benefit of the Trustee
and Holders of the Xxxxxx Mortgage Trust Mortgage Pass-Through Certificates,
Series 2006-1. All income and gain realized from any such investment shall
be
for the benefit of the Master Servicer as additional compensation and shall
be
subject to its withdrawal on order from time to time, and shall not be part
of
the Trust Fund. The amount of any losses incurred in respect of any such
investments shall be deposited in the Collection Account by the Master Servicer
out of its own funds, without any right of reimbursement therefor, immediately
as realized. The foregoing requirements for deposit in the Collection Account
are exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments of interest on funds in the Collection
Account and payments in the nature of late payment charges or assumption fees
and Prepayment Penalty Amounts with respect to those Mortgage Loans for which
the Mortgage Loan Seller does not own the servicing rights (as indicated in
the
Mortgage Loan Schedule), need not be deposited by the Master Servicer in the
Collection Account and may be retained by the Master Servicer or the applicable
Servicer as additional servicing compensation. If the Master Servicer deposits
in the Collection Account any amount not required to be deposited therein,
it
may at any time withdraw such amount from the Collection Account.
76
Section 4.02. |
Application
of Funds in the Collection
Account.
|
The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to
reimburse itself or the Servicer for Advances made by it or by the Servicer
pursuant to Section 5.04 or the Servicing Agreement; provided,
however,
that the
Master Servicer’s right to reimburse itself pursuant to this subclause is
limited to amounts received on or in respect of particular Mortgage Loans
(including, for this purpose, Liquidation Proceeds and amounts representing
Insurance Proceeds with respect to the property subject to the related Mortgage)
which represent late recoveries (net of the applicable Servicing Fee and the
Master Servicing Fee) of payments of principal or interest respecting which
any
such Advance was made; provided,
further,
that
following the final liquidation of a Mortgage Loan, the Master Servicer may
reimburse itself for previously unreimbursed Advances in excess of Liquidation
Proceeds or Insurance Proceeds with respect to such Mortgage Loans from any
funds in the Collection Account, it being understood, in the case of any such
reimbursement, that the Master Servicer’s or Servicer’s right thereto shall be
prior to the rights of the Certificateholders;
(ii) to
reimburse itself or the Servicer for any Servicing Advances made by it or by
the
Servicer that it or the Servicer determines in good faith will not be
recoverable from amounts representing late recoveries of payments of principal
or interest respecting the particular Mortgage Loan as to which such Servicing
Advance was made or from Liquidation Proceeds or Insurance Proceeds with respect
to such Mortgage Loan, it being understood, in the case of any such
reimbursement, that such Master Servicer’s or Servicer’s right thereto shall be
prior to the rights of the Certificateholders;
(iii) to
reimburse itself or any Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Sections 9.20 and 9.22(a)
or
the Servicing Agreement in good faith in connection with the restoration of
damaged property and, to the extent that Liquidation Proceeds after such
reimbursement exceed the unpaid principal balance of the related Mortgage Loan,
together with accrued and unpaid interest thereon at the applicable Mortgage
Rate less the applicable Servicing Fee and the Master Servicing Fee for such
Mortgage Loan to the Due Date next succeeding the date of its receipt of such
Liquidation Proceeds, to pay to itself out of such excess the amount of any
unpaid assumption fees, late payment charges or other Mortgagor charges on
the
related Mortgage Loan and to retain any excess remaining thereafter as
additional servicing compensation, it being understood, in the case of any
such
reimbursement or payment, that such Master Servicer’s or Servicer’s right
thereto shall be prior to the rights of the Certificateholders;
(iv) to
reimburse itself or any Servicer for expenses incurred by and recoverable by
or
reimbursable to it or the Servicer pursuant to Section 9.04, 9.05, 9.06, 9.16
or
9.22(a) or pursuant to the Servicing Agreement, and to reimburse itself for
any
expenses reimbursable to it pursuant to Section 10.01(c);
77
(v) to
pay to
the applicable Person, with respect to each Mortgage Loan or REO Property
acquired in respect thereof that has been repurchased by such Person pursuant
to
this Agreement, all amounts received thereon and not distributed on the date
on
which the related repurchase was effected;
(vi) subject
to Section 5.05, to pay to itself income earned on the investment of funds
deposited in the Collection Account;
(vii) to
make
payments to the Trustee for deposit into the Certificate Account in the amounts
and in the manner provided for in Section 4.01(c);
(viii) to
make
distributions of any Retained Interest to the Retained Interest Holder on each
Distribution Date (other than any Retained Interest not deposited into the
Collection Account in accordance with Section 4.01(d)(iii));
(ix) to
make
payment to itself, the Trustee and others pursuant to any provision of this
Agreement;
(x) to
withdraw funds deposited in error in the Collection Account;
(xi) to
clear
and terminate the Collection Account pursuant to Section 7.02;
(xii) to
reimburse a successor Master Servicer (solely in its capacity as successor
Master Servicer), for any fee or advance occasioned by a termination of the
Master Servicer, and the assumption of such duties by the Trustee or a successor
Master Servicer appointed by the Trustee pursuant to Section 6.14, in each
case
to the extent not reimbursed by the terminated Master Servicer, it being
understood, in the case of any such reimbursement or payment, that the right
of
the Master Servicer or the Trustee thereto shall be prior to the rights of
the
Certificateholders; and
(xiii) to
reimburse any Servicer for such amounts as are due thereto under the Servicing
Agreement and have not been retained by or paid to the Servicer to the extent
provided in such Servicing Agreement.
If
provided in the Servicing Agreement, the Servicer shall be entitled to retain
as
additional servicing compensation any Prepayment Interest Excess (to the extent
not offset by Prepayment Interest Shortfalls).
In
the
event that the Master Servicer fails on any Deposit Date to remit to the Trustee
any amounts required to be so remitted to the Trustee pursuant to subclause
(vii) on such date, the Master Servicer shall pay the Trustee, for the account
of the Trustee, interest calculated at the “prime rate” (as published in the
“Money Rates” section of The
Wall Street Journal)
on such
amounts not timely remitted for the period from and including that Deposit
Date
to but not including the related Distribution Date.
78
In
connection with withdrawals pursuant to subclauses (i), (iii), (iv) and (vi)
above, the Master Servicer’s or Servicer’s entitlement thereto is limited to
collections or other recoveries on the related Mortgage Loan, except as provided
herein. The Master Servicer shall therefore keep and maintain a separate
accounting for each Mortgage Loan it master services for the purpose of
justifying any withdrawal from the Collection Account it maintains pursuant
to
subclauses (i), (iii), (iv) and (vi) above.
Section 4.03. |
Reports
to Certificateholders.
|
(a) On
each
Distribution Date on or prior to a Section 7.01(c) Purchase Event or a Trust
Fund Termination Event, the Trustee shall prepare (based solely on the basis
of
the Underlying Distribution Date Statement obtained from the Underlying Trustee
on or prior to the Distribution Date and other information provided by the
Master Servicer) and shall make available to each Certificateholder and each
Rating Agency a report (the “Distribution Date Statement”) setting forth the
following information (on the basis of Mortgage Loan level information obtained
from the Servicer and the Master Servicer):
(i) the
aggregate amount of the distribution to be made on such Distribution Date to
the
Holders of each Class of Certificates, other than any Class of Notional
Certificates, and in respect of each Component, to the extent applicable,
allocable to principal on the Mortgage Loans, including any Subsequent Recovery,
Liquidation Proceeds and Insurance Proceeds, stating separately the amount
attributable to scheduled principal payments and unscheduled payments in the
nature of principal in each Mortgage Pool;
(ii) the
aggregate amount of the distribution to be made on such Distribution Date to
the
Holders of each Class of Certificates, other than the Class AP Certificates,
and
in respect of each Component, allocable to interest, including any Accrual
Amount added to the Class Principal Amount of any Class of Accrual
Certificates;
(iii) the
amount, if any, of any distribution to the Holders of a Residual
Certificate;
(iv) for
each
Mortgage Pool and in the aggregate, (A) the aggregate amount of any
Advances required to be made by or on behalf of the Master Servicer or any
Servicer (or the Trustee solely in its capacity as successor master servicer)
with respect to such Distribution Date, (B) the aggregate amount of such
Advances actually made, and (C) the amount, if any, by which (A) above
exceeds (B) above;
(v) the
Aggregate Principal Balance of the Mortgage Loans and the Non-AP Pool Balance
of
each Mortgage Pool for such Distribution Date, after giving effect to payments
allocated to principal reported under clause (i) above;
(vi) the
Class
Principal Amount (or Class Notional Amount) of each Class of Certificates,
to
the extent applicable, and the Component Principal Amount or Component Notional
Amount, as applicable, of each Component as of such Distribution Date after
giving effect to payments allocated to principal reported under clause (i)
above
(and to the addition of any Accrual Amount in the case of any Class of Accrual
Certificates), separately identifying any reduction of any of the foregoing
Certificate Principal Amounts, Component Principal Amounts or Component Notional
Amounts due to Realized Losses;
79
(vii) for
each
Mortgage Pool and in the aggregate, any Realized Losses realized with respect
to
the Mortgage Loans (x) in the applicable Prepayment Period and (y) in the
aggregate since the Cut-off Date, stating separately the amount of Special
Hazard Losses, Fraud Losses and Bankruptcy Losses and the aggregate amount
of
such Realized Losses, and the remaining Special Hazard Loss Amount, Fraud Loss
Amount and Bankruptcy Loss Amount;
(viii) the
amount of the Master Servicing Fees and Servicing Fees paid during the Due
Period to which such distribution relates;
(ix) the
number and aggregate Scheduled Principal Balance of Mortgage Loans in each
Mortgage Pool and in the aggregate, as reported to the Trustee by the Master
Servicer, (a) remaining outstanding (b) delinquent one month, (c) delinquent
two
months, (d) delinquent three or more months, and (e) as to which foreclosure
proceedings have been commenced as of the close of business on the last Business
Day of the calendar month immediately preceding the month in which such
Distribution Date occurs;
(x) the
deemed principal balance of each REO Property as of the close of business on
the
last Business Day of the calendar month immediately preceding the month in
which
such Distribution Date occurs;
(xi) with
respect to any Mortgage Loan that became an REO Property during the preceding
calendar month, the principal balance of such Mortgage Loan and the number
of
such Mortgage Loans as of the close of business on the last Business Day of
the
calendar month immediately preceding the month in which such Distribution Date
occurs;
(xii) with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan, and of each
Qualifying Substitute Mortgage Loan;
(xiii) the
aggregate outstanding Interest Shortfalls and Net Prepayment Interest
Shortfalls, if any, for each Class of Certificates, after giving effect to
distributions made on such Distribution Date;
(xiv) the
Certificate Interest Rate or Component Interest Rate applicable to such
Distribution Date with respect to each Class of Certificates and each Component,
respectively;
(xv) if
applicable, the amount of any shortfall (i.e., the difference between the
aggregate amounts of principal and interest which Certificateholders would
have
received if there were sufficient available amounts in the Certificate Account
and the amounts actually distributed);
80
(xvi) the
amount of any Class P Distributable Amount allocated to the Class P Certificates
for that Distribution Date;
(xvii) the
amount of any principal and interest, if any, distributed in respect of the
Underlying Certificates on the related Underlying Distribution Date;
(xviii) the
certificate principal amount and the class principal amount of the Underlying
Certificates (i) immediately prior to the related Distribution Date and (ii)
as
of such Distribution Date, after giving effect to the distributions of principal
made thereon on the Underlying Distribution Date;
(xix) the
aggregate outstanding Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls,
if
any, for the Class 1-A1 or Class 3-A1 Certificates, after giving effect to
the
distribution made on such Distribution Date; and
(xx) the
amount of any payments made by the Cap Counterparty to the Trust Fund under
the
Class 1-A1 Cap Agreement and Class 3-A1 Cap Agreement,
respectively.
In
addition to the information listed above, such Distribution Date Statement
shall
also include such
other information as is required by Form 10-D, including, but not limited to,
the information required by Item 1121 (§ 229.1121) of Regulation AB,
other
than those data elements specified in Item 1121(a)(11), (12) and
(14).
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vii) above,
the amounts shall be expressed as a dollar amount per $1,000 of original
principal amount of Certificates.
Holders
of the Group 4 Certificates may receive access to the monthly Underlying
Distribution Date Statements by accessing the Underlying Trustee’s internet
website at xxx.xxxxxxxxxxxxxxxxxxxxxx.xxxxxx.xxx.
On
any
Distribution Date after the occurrence of a Section 7.01(c) Purchase Event,
the
information required by subclauses (i), (iii), (iv), (v), (vii), (viii), (ix),
(x), (xi), (xii) and (xvi) shall be provided to the Holder of the LT-R
Certificate and the LTURI-holder with regard to the Lower Tier REMIC 1
Uncertificated Regular Interests in lieu of the Certificates.
The
Trustee will make such report and additional loan level information (and, at
its
option, any additional files containing the same information in an alternative
format) available each month to the Certificateholders and the Rating Agencies
via the Trustee’s internet website, initially located at xxx.xxxxxxxxxxxx.xxx.
Such parties that are unable to use the website are entitled to have a paper
copy mailed to them via first class mail upon request. The Trustee shall have
the right to change the way such statements are distributed in order to make
such distribution more convenient and/or more accessible to the above-parties
and the Trustee shall provide timely and adequate notification to all
above-parties regarding any such changes.
The
foregoing information and reports shall be prepared and determined by the
Trustee based solely on the Underlying Distribution Date Statement provided
by
the Underlying Trustee for the related Underlying Distribution Date with respect
to information with respect to the Underlying Certificates and on the Mortgage
Loan data provided to the Trustee by the Master Servicer (in a format agreed
to
by the Trustee and the Master Servicer) no later than 2:00 p.m. Eastern Time
four Business Days prior to the Distribution Date. In preparing or furnishing
Mortgage Loan data to the Trustee, the Master Servicer shall be entitled to
rely
conclusively on the accuracy of the information or data regarding the Mortgage
Loans and the related REO Property that has been provided to the Master Servicer
by the Servicer, and the Master Servicer shall not be obligated to verify,
recompute, reconcile or recalculate any such information or data. The Trustee
shall be entitled to conclusively rely on the Mortgage Loan data provided by
the
Master Servicer and shall have no liability for any errors in such Mortgage
Loan
data. In addition, the Trustee shall be entitled to conclusively rely on the
accuracy of the information in the Underlying Distribution Date Statements
that
have been provided to the Trustee by the Underlying Trustee.
81
(b) Upon
the
reasonable advance written request of any Certificateholder that is a savings
and loan, bank or insurance company, which request, if received by the Trustee,
will be promptly forwarded to the Master Servicer, the Master Servicer shall
provide, or cause to be provided, (or, to the extent that such information
or
documentation is not required to be provided by a Servicer under the Servicing
Agreement, shall use reasonable efforts to obtain such information and
documentation from the Servicer, and provide) to such Certificateholder such
reports and access to information and documentation regarding the Mortgage
Loans
as such Certificateholder may reasonably deem necessary to comply with
applicable regulations of the Office of Thrift Supervision or its successor
or
other regulatory authorities with respect to investment in the Certificates;
provided,
however,
that
the Master Servicer shall be entitled to be reimbursed by such Certificateholder
for such Master Servicer’s actual expenses incurred in providing such reports
and access.
(c) Within
90
days, or such shorter period as may be required by statute or regulation, after
the end of each calendar year, the Trustee shall make available to each Person
who at any time during the calendar year was a Certificateholder of record,
a
report summarizing the items provided to Certificateholders pursuant to Section
4.03(a)(i) and (ii) on an annual basis as may be required to enable such Holders
to prepare their federal income tax returns. Such information shall include
the
amount of original issue discount accrued on each Class of Certificates and
information regarding the expenses of the Trust Fund. The Trustee shall be
deemed to have satisfied this requirement if it forwards such information in
any
other format permitted by the Code. The Master Servicer shall provide the
Trustee with such information as is necessary for the Trustee to prepare such
reports.
Section 4.04. |
Certificate
Account.
|
(a) The
Trustee shall establish and maintain in its name, as trustee, a trust account
(the “Certificate Account”), to be held in trust for the benefit of the
Certificateholders until disbursed pursuant to the terms of this Agreement.
The
Certificate Account shall be an Eligible Account. If the existing Certificate
Account ceases to be an Eligible Account, the Trustee shall establish a new
Certificate Account that is an Eligible Account within 20 Business Days and
transfer all funds on deposit in such existing Certificate Account into such
new
Certificate Account. The Certificate Account shall relate solely to the
Certificates and to the Lower Tier REMIC I Uncertificated Regular Interests
issued hereunder and funds in the Certificate Account shall be held separate
and
apart from and shall not be commingled with any other monies including, without
limitation, other monies of the Trustee held under this Agreement.
82
(b) The
Trustee shall cause to be deposited into the Certificate Account on the day
on
which, or, if such day is not a Business Day, the Business Day immediately
following the day on which, any monies are remitted by the Master Servicer
to
the Trustee, all such amounts. In addition, the Trustee shall deposit any
distributions on the Underlying Certificates with respect to the Underlying
Distribution Date upon its receipt thereof. If the Trustee shall not have
received a distribution with respect to the Underlying Certificates by the
date
on which such distribution was due and payable pursuant to the terms of the
Underlying Certificates, the Trustee shall request the Underlying Trustee to
make such payment as promptly as possible and legally permitted and may, and
at
the direction of Holders of at least a majority in Class Principal Amount (or
Class Notional Amount) of each Class of Group 4 Certificates shall, subject
to
the penultimate sentence of this paragraph, take any available legal action,
including, without limitation, the prosecution of any claims in connection
therewith. The reasonable legal fees and expenses incurred by the Trustee in
connection with the prosecution of any such legal action shall be reimbursable
to the Trustee out of the proceeds of any such action and shall be retained
by
the Trustee prior to the deposit of any remaining proceeds in the Certificate
Account pending payment thereof to Holders of the Group 4 Certificates in
accordance with Section 5.02. The amount distributable to Holders of the Group
4
Certificates on the Distribution Date immediately succeeding the receipt of
such
proceeds shall be reduced by the amount so reimbursed. In the event that the
Trustee has reason to believe that the proceeds of any such legal action may
be
insufficient to reimburse it for its projected legal fees and expenses, the
Trustee shall notify the Holders of the Group 4 Certificates that it is not
obligated to pursue any such available remedies unless adequate indemnity for
its legal fees and expenses is provided by the Holders of the Group 4
Certificates. In the event that any such indemnity is provided to the Trustee,
the Trustee shall take such action as directed.
(c) The
Trustee shall make withdrawals from the Certificate Account only for the
following purposes:
(i) to
withdraw amounts deposited in the Certificate Account in error;
(ii) to
pay
itself any investment income earned with respect to funds in the Certificate
Account invested in Eligible Investments as set forth in subsection (c) below,
and to make payments to itself (prior to making distributions pursuant to
Section 5.02) for any expenses or other indemnification owing to the Trustee
and
others pursuant to any provision of this Agreement or the Custodial
Agreements;
83
(iii) to
make
payments of the Master Servicing Fee (to the extent not already withheld or
withdrawn from the Collection Account by the Master Servicer) to the Master
Servicer;
(iv) to
make
distributions to the Certificateholders pursuant to Article V; and
(v) to
clear
and terminate the Certificate Account pursuant to Section 7.02.
(d) The
Trustee may invest, or cause to be invested, funds held in the Certificate
Account, which funds, if invested, shall be invested in Eligible Investments
(which may be obligations of the Trustee described in paragraph (viii) of the
definition thereof). All such investments must be payable on demand or mature
no
later than the next Distribution Date, and shall not be sold or disposed of
prior to their maturity. All such Eligible Investments will be made in the
name
of the Trustee (in its capacity as such) or its nominee. All income and gain
realized from any such investment shall be compensation for the Trustee and
shall be subject to its withdrawal on order from time to time. The amount of
any
losses incurred in respect of any such investments shall be paid by the Trustee
for deposit in the Certificate Account out of its own funds, without any right
of reimbursement therefor, immediately as realized. Funds held in the
Certificate Account that are not invested shall be held in cash.
Section
4.05. The
Securities Account.
(a) The
Trustee shall establish one or more “Securities Accounts” in the name of the
Securities Intermediary that shall be held by the Trustee for the benefit of
the
Certificateholders. Each Securities Account shall be a segregated, non-interest
bearing trust account maintained with the Trustee and established for the
purpose of holding the Underlying Certificates; such account may be the same
account as the Certificate Account. Each Securities Account shall be an Eligible
Account. The Trustee hereby appoints Citibank, N.A., as Securities Intermediary
with respect to the Securities Accounts, and the Trustee shall hold for the
benefit of the Certificateholders, the Securities Accounts and the Security
Entitlements to all Financial Assets credited to the Securities Accounts
including without limitation all amounts, securities, investments, Financial
Assets, investment property and other property from time to time deposited
in or
credited to the Securities Accounts and all proceeds thereof. Amounts held
from
time to time in the Securities Accounts will continue to be held by the Trustee
for the benefit of the Certificateholders. Upon the termination of the Trust
Fund, the Trustee shall inform the Securities Intermediary of such termination.
By acceptance of their Certificates or interests therein, the Certificateholders
shall be deemed to have appointed Citibank, N.A., as Securities Intermediary.
Citibank, N.A. hereby accepts such appointment as Securities
Intermediary.
(b) With
respect to the Account Property credited to a Securities Account, the Securities
Intermediary agrees that:
(i) any
Account Property that is held in deposit accounts shall be held solely in a
bank
approved in writing by each Rating Agency; provided, that Citibank, N.A. shall
be deemed to be so approved for so long as it maintains a short term debt rating
by S&P of at least “A-1+” and a long term debt rating by S&P of at least
“AA-”; and each such deposit account shall be subject to the exclusive custody
and control of the Securities Intermediary, and the Securities Intermediary
shall have sole signature authority with respect thereto;
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(ii) the
sole
assets permitted in a Securities Account shall be those the Securities
Intermediary agrees to treat as Financial Assets; and
(iii) any
such
Account Property that is, or is treated as, a Financial Asset shall be
physically delivered (accompanied by any required endorsements) to, or credited
to an account in the name of, the Securities Intermediary or other eligible
institution maintaining a Securities Account in accordance with the Securities
Intermediary’s customary procedures such that the Securities Intermediary or
such other institution establishes a Security Entitlement in favor of the
Trustee with respect thereto over which the Securities Intermediary or such
other institution has Control.
(c) The
Securities Intermediary hereby confirms that (A) a Securities Account is an
account to which Financial Assets are or may be credited, and the Securities
Intermediary shall, subject to the terms of this Agreement, treat the Trustee
as
entitled to exercise the rights that comprise any Financial Asset credited
to a
Securities Account, (B) all Account Property in respect of a Securities Account
will be promptly credited by the Securities Intermediary to such Securities
Account, and (C) all securities or other property underlying any Financial
Assets credited to a Securities Account shall be registered in the name of
the
Trustee, endorsed to the Trustee or in blank or credited to another securities
account maintained in the name of the Trustee and in no case will any Financial
Asset credited to a Securities Account be registered in the name of the
Depositor, payable to the order of the Depositor or specially endorsed to the
Depositor except to the extent the foregoing have been specially endorsed to
the
Trustee or in blank.
(d) The
Securities Intermediary hereby agrees that each item of property (whether
investment property, Financial Asset, security, instrument or cash) credited
to
a Securities Account shall be treated as a Financial Asset.
(e) If
at any
time the Securities Intermediary shall receive any order from the Trustee
directing transfer or redemption of any financial asset relating to a Securities
Account, the Securities Intermediary shall comply with such entitlement order
without further consent by the Depositor or any other Person.
(f) In
the
event that the Securities Intermediary has or subsequently obtains by agreement,
operation of law or otherwise a security interest in a Securities Account or
any
Financial Asset credited thereto, the Securities Intermediary hereby agrees
that
such security interest shall be subordinate to the ownership interest of the
Trustee. The Financial Assets credited to a Securities Account will not be
subject to deduction, set-off, banker’s lien, or any other right in favor of any
Person other than the Trustee (except that the Securities Intermediary may
set
off the face amount of any checks which have been credited to a Securities
Account but are subsequently returned unpaid because of uncollected or
insufficient funds).
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(g) There
are
no other agreements entered into between the Securities Intermediary in such
capacity and the Depositor with respect to a Securities Account. In the event
of
any conflict between this Agreement (or any provision of this Agreement) and
any
other agreement now existing or hereafter entered into, the terms of this
Agreement shall prevail.
(h) The
rights and powers granted herein to the Trustee have been granted in order
to
perfect its ownership interest in the Securities Accounts and the Security
Entitlements to the Financial Assets credited thereto and are powers coupled
with an interest and will neither be affected by the dissolution or bankruptcy
of the Depositor nor by the lapse of time. The obligations of the Securities
Intermediary hereunder shall continue in effect until the ownership interest
of
the Trustee in the Securities Accounts and such Security Entitlements has been
terminated pursuant to the terms of this Agreement and the Trustee has notified
the Securities Intermediary of such termination in writing.
(i) Notwithstanding
anything else contained herein, the Trustee agrees that the Securities Accounts
will be established only with the Securities Intermediary or another institution
meeting the requirements of this Section, which agrees substantially as follows:
(1) it will comply with entitlement orders related to such account issued by
the
Trustee without further consent by the Depositor; (2) until termination of
the
Agreement, it will not enter into any other agreement related to such account
pursuant to which it agrees to comply with entitlement orders of any Person
other than the Trustee; and (3) all assets delivered or credited to it in
connection with such account and all investments thereof will be promptly
credited to such account.
(j) The
Depositor agrees to take or cause to be taken such further actions, to execute,
deliver and file or cause to be executed, delivered and filed such further
documents and instruments (including, without limitation, any financing
statements under the Relevant UCC or this Agreement) as may be determined to
be
necessary, in order to perfect the interests created by this Section and
otherwise effectuate the purposes, terms and conditions of this Agreement.
Section
4.06. Liability
of the Securities Intermediary.
The
Securities Intermediary shall be liable in accordance herewith only to the
same
extent as the Trustee shall be liable hereunder as provided in Article VI
hereof.
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
Section 5.01. |
Distributions
Generally.
|
(a) Subject
to Section 7.01 respecting (a) the final distribution on the Certificates and
(b) distributions on the Lower Tier REMIC I Uncertificated Regular Interests,
on
each Distribution Date the Trustee or the Paying Agent shall make distributions
in accordance with this Article V. Such distributions shall be made by wire
transfer if the Certificateholder has provided the Trustee with wire
instructions or by check mailed to the address of such Certificateholder as
it
appears in the books of the Trustee if the Certificateholder has not provided
the Trustee with wire instructions in immediately available funds to an account
specified in the request and at the expense of such Certificateholder;
provided,
however,
that the
final distribution in respect of any Certificate shall be made only upon
presentation and surrender of such Certificate at the applicable Corporate
Trust
Office; provided,
further,
that the
foregoing provisions shall not apply to any Class of Certificates as long as
such Certificate remains a Book-Entry Certificate in which case all payments
made shall be made through the Clearing Agency and its Clearing Agency
Participants. Notwithstanding such final distribution of principal of any of
the
Certificates, each Residual Certificate will remain outstanding until the
termination of each related REMIC and the payment in full of all other amounts
due with respect to such Residual Certificate and at such time such final
payment in retirement of any such Residual Certificate will be made only upon
presentation and surrender of such Certificate at the Corporate Trust Office
of
the Trustee. If any payment required to be made on the Certificates or the
Lower
Tier REMIC I Uncertificated Regular Interests is to be made on a day that is
not
a Business Day, then such payment will be made on the next succeeding Business
Day.
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(b) All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates in such Class equally in proportion to their respective initial
Certificate Principal Amounts (or initial Notional Amounts).
Section 5.02. |
Distributions
from the Certificate Account.
|
(a) On
each
Distribution Date (or, with respect to the Group 4 Certificates and
distributions received in respect of the Underlying Certificates after the
Distribution Date, no later than the first Business Day after receipt by the
Trustee of such distributions (without any additional interest accruing
thereon); provided
that the
Trustee shall have no liability with respect to any such delay), the Trustee
(or
the Paying Agent on behalf of the Trustee) shall withdraw from the Certificate
Account, the Available Distribution Amount (other than the Class P Distributable
Amount) with respect to each Asset Pool, and shall distribute such amount to
the
Holders of record of each Class of Certificates or Components, in the following
order of priority:
(i) from
the
Available Distribution Amount for each Asset Pool, to each Class of Senior
Certificates or Components relating to such Asset Pool (other than the related
Components of the Class AP Certificates), the Accrued Certificate Interest
thereon for such Distribution Date, as reduced, in each case, by such Class’s
(other than a Group 4 Certificate) or Component’s allocable share of any Net
Prepayment Interest Shortfalls for the related Asset Pool for such Distribution
Date; provided,
however,
that
any shortfall in available amounts for each Asset Pool shall be allocated among
the Classes of Senior Certificates or Components related to such Asset Pool
in
proportion to the amount of Accrued Certificate Interest (as so reduced) that
would otherwise be distributable thereon; and provided
further,
that
prior to the related Accretion Termination Date, such amounts otherwise
distributable to Class 1-A4 and Class 3-A4 Certificates will instead be added
to
the Class Principal Amounts thereof and will be allocated as provided in Section
5.02(f);
87
(ii) from
the
Available Distribution Amount for each Asset Pool, to each Class of Senior
Certificates or Components relating to such Asset Pool (other than the related
Components of the Class AP Certificates), any related Interest Shortfall for
such Distribution Date; provided,
however,
that
any shortfall in available amounts for each Asset Pool shall be allocated among
the Classes of Senior Certificates or Components related to such Asset Pool
in
proportion to the amount of such interest (as so reduced) that would otherwise
be distributable thereon; and provided
further,
that
prior to the Accretion Termination Date, such amounts otherwise distributable
to
Class 1-A4 and Class 3-A4 Certificates will instead be added to the Class
Principal Amounts thereof and will be allocated as provided in Section 5.02(f);
(iii) from
the
remaining Available Distribution Amount for each Asset Pool to the Senior
Certificates (other than any related Notional Certificates) as set forth in
the
Senior Principal Priorities attached as Exhibit O hereto;
(iv) from
the
remaining Available Distribution Amounts for Pool 1, to the AP(1) Component,
to
the extent of the remaining Available Distribution Amounts for Pool 1, the
related AP Deferred Amount for such Component for such Distribution Date, until
the Component Principal Amount thereof has been reduced to zero; provided,
however,
that
(A) distributions pursuant to this priority shall not exceed the Subordinate
Principal Distribution Amount for Pool 1 for such date; and (B) such amounts
will not reduce the Component Principal Amount of the AP(1)
Component;
(v) from
the
remaining Available Distribution Amounts for Pool 3, to the AP(3) Component,
to
the extent of the remaining Available Distribution Amounts for Pool 3, the
related AP Deferred Amount for such Component for such Distribution Date, until
the Component Principal Amount thereof has been reduced to zero; provided,
however,
that
(A) distributions pursuant to this priority shall not exceed the aggregate
Subordinate Principal Distribution Amounts for Pool 3 for such date; (B) such
amounts will not reduce the Component Principal Amounts of the AP(3) Component;
and
(vi) from
the
remaining Available Distribution Amount for Pool 3, to the Group 3 Subordinate
Certificates, subject to the prior distribution of amounts pursuant to Section
5.02(h) in the case of clauses (C), (F), (I), (L), (O) and (R) below, in the
following order of priority:
(A) to
the
Class 3B1 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(B) to
the
Class 3B1 Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(C) to
the
3B1 Certificates, in reduction of the Class Principal Amount thereof, such
Class’s Subordinate Certificate Percentage of the Subordinate Principal
Distribution Amount for Pool 3 on such Distribution Date, except as provided
in
Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
88
(D) to
the
Class 3B2 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(E) to
the
Class 3B2 Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(F) to
the
Class 3B2 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Certificate Percentage of the Subordinate Principal
Distribution Amount for Pool 3 on such Distribution Date, except as provided
in
Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(G) to
the
Class 3B3 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(H) to
the
Class 3B3 Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(I) to
the
Class 3B3 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Certificate Percentage of the Subordinate Principal
Distribution Amount for Pool 3 on such Distribution Date, except as provided
in
Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(J) to
the
Class 3B4 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(K) to
the
Class 3B4 Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(L) to
the
Class 3B4 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Certificate Percentage of the Subordinate Principal
Distribution Amount for Pool 3 on such Distribution Date, except as provided
in
Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(M) to
the
Class 3B5 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(N)
to the
Class 3B5 Certificates, any Interest Shortfall for such Class on such
Distribution Date;
89
(O) to
the
Class 3B5 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Certificate Percentage of the Subordinate Principal
Distribution Amount for Pool 3 on such Distribution Date, except as provided
in
Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(P) to
the
Class 3B6 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(Q) to
the
Class 3B6 Certificates, any Interest Shortfall for such Class on such
Distribution Date; and
(R) to
the
Class 3B6 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Certificate Percentage of the Subordinate Principal
Distribution Amount for Pool 3 on such Distribution Date, except as provided
in
Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(vii) from
the
remaining Available Distribution Amount for Pool 1 and Pool 2, to the Group
1-2
Subordinate Certificates, subject to the prior distribution of amounts pursuant
to Section 5.02(h) in the case of clauses (C), (F), (I), (L), (O) and (R) below,
in the following order of priority:
(A) to
the
Class B1(1-2) Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(B) to
the
Class B1(1-2) Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(C) to
the
Class B1(1-2) Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Certificate Percentage of the aggregate Subordinate
Principal Distribution Amount for Pool 1 and Pool 2 on such Distribution Date,
except as provided in Section 5.02(d), until the Class Principal Amount thereof
has been reduced to zero;
(D) to
the
Class B2(1-2) Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(E) to
the
Class B2(1-2) Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(F) to
the
Class B2(1-2) Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Certificate Percentage of the aggregate Subordinate
Principal Distribution Amount for Pool 1 and Pool 2 on such Distribution Date,
except as provided in Section 5.02(d), until the Class Principal Amount thereof
has been reduced to zero;
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(G) to
the
Class B3(1-2) Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(H) to
the
Class B3(1-2) Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(I) to
the
Class B3(1-2) Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Certificate Percentage of the aggregate Subordinate
Principal Distribution Amount for Pool 1 and Pool 2 on such Distribution Date,
except as provided in Section 5.02(d), until the Class Principal Amount thereof
has been reduced to zero;
(J) to
the
Class B4(1-2) Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(K) to
the
Class B4(1-2) Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(L) to
the
Class B4(1-2) Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Certificate Percentage of the aggregate Subordinate
Principal Distribution Amount for Pool 1 and Pool 2 on such Distribution Date,
except as provided in Section 5.02(d), until the Class Principal Amount thereof
has been reduced to zero;
(M) to
the
Class B5(1-2) Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(N) to
the
Class B5(1-2) Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(O) to
the
Class B5(1-2) Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Certificate Percentage of the aggregate Subordinate
Principal Distribution Amount for Pool 1 and Pool 2 on such Distribution Date,
except as provided in Section 5.02(d), until the Class Principal Amount thereof
has been reduced to zero;
(P) to
the
Class B6(1-2) Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(Q) to
the
Class B6(1-2) Certificates, any Interest Shortfall for such Class on such
Distribution Date;
91
(R) to
the
Class B6(1-2) Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Certificate Percentage of the aggregate Subordinate
Principal Distribution Amount for Pool 1 and Pool 2 on such Distribution Date,
except as provided in Section 5.02(d), until the Class Principal Amount thereof
has been reduced to zero;
(S) to
the
Class B7(1-2) Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(T) to
the
Class B7(1-2) Certificates, any Interest Shortfall for such Class on such
Distribution Date; and
(U) to
the
Class B7(1-2) Certificates, in reduction of the Class Principal Amount thereof,
such Class’s Subordinate Certificate Percentage of the aggregate Subordinate
Principal Distribution Amount for Pool 1 and Pool 2 on such Distribution Date,
except as provided in Section 5.02(d), until the Class Principal Amount thereof
has been reduced to zero;
(b) Net
Prepayment Interest Shortfalls for each Mortgage Pool shall be allocated among
the Certificates related to such Mortgage Pool (other than the related
Components of the Class AP Certificates) pro
rata
based on
the Accrued Certificate Interest otherwise distributable thereon; except that
in
the case of the Group 1-2 Subordinate Certificates, such amounts shall be
allocated on the basis of interest accrued on the related Apportioned Principal
Balances.
(c) (i)
After
the Group 3 Credit Support Depletion Date, the Senior Distribution Amount with
respect to Pool 3 remaining after distribution of interest to the related Non-AP
Senior Certificates on such date shall be distributed among the related Classes
of Senior Certificates proportionately, on the basis of their respective Class
Principal Amounts immediately prior to such Distribution Date, regardless of
the
priorities and amounts set forth in Section 5.02(a)(iii); and (ii) after the
Group 1-2 Credit Support Depletion Date, the Senior Distribution Amount with
respect to Pool 1 and Pool 2 remaining after distribution of interest to the
related Non-AP Senior Certificates on such date shall be distributed among
the
related Classes of Senior Certificates proportionately, on the basis of their
respective Class Principal Amounts immediately prior to such Distribution Date,
regardless of the priorities and amounts set forth in Section
5.02(a)(iii).
(d) (i)
With
respect to any of the Class 3B1, Class 3B2, Class 3B3, Class 3B4, Class 3B5
and
Class 3B6 Certificates, if on any Distribution Date the Credit Support
Percentage for that Class is less than the Original Credit Support Percentage
for such Class, then, notwithstanding anything to the contrary in Section
5.02(a), no distribution of amounts described in clauses (ii) and (iii) of
the
definition of Subordinate Principal Distribution Amount will be made to any
Group 3 Subordinate Certificate of lower priority and (ii) with respect to
any
of the Class B1(1-2), Class B2(1-2), Class B3(1-2), Class B4(1-2), Class
B5(1-2), Class B6(1-2) and Class B7(1-2) Certificates, if on any Distribution
Date the Credit Support Percentage for that Class is less than the Original
Credit Support Percentage for such Class, then, notwithstanding anything to
the
contrary in Section 5.02(a), no distribution of amounts described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
will be made to any related Group 1-2 Subordinate Certificate of lower
priority.
92
Any
amount not distributed in respect of any Group 3 Subordinate Certificate on
any
Distribution Date pursuant to the immediately preceding paragraph shall be
allocated among the remaining Group 3 Subordinate Certificates in proportion
to
their respective Certificate Principal Amounts. Any amount not distributed
in
respect of any Group 1-2 Subordinate Certificate on any Distribution Date
pursuant to the immediately preceding paragraph shall be allocated among the
remaining Group 1-2 Subordinate Certificates in proportion to their respective
Certificate Principal Amounts.
(e) On
each
Distribution Date, the Trustee shall distribute to the Holder of the Class
R
Certificate any amounts remaining in REMIC III for such Distribution Date after
application of all amounts described in paragraph (a) of this Section 5.02.
Any
distributions pursuant to this paragraph (e) shall not reduce the Class
Principal Amount of the Class R Certificate.
(f) On
each
Distribution Date prior to the Accretion Termination Date for the Class 1-A4
Certificates and before the distributions have been made on such Distribution
Date pursuant to 3(a)(i)(C) and (D) as set forth on Exhibit O hereto, an amount
equal to the Accrual Amount allocable to the Class 1-A4 Certificates for such
date will be allocated to make distributions in respect of principal
pro
rata,
to the
Class 1-A1 and Class 1-A3 Certificates, based on their respective Class
Principal Amounts, until their respective Class Principal Amounts have been
reduced to zero. On each such date, the Accrual Amount for the Class 1-A4
Certificates and such date will be added to the Class Principal Amount thereof.
On each Distribution Date on or after the Accretion Termination Date for the
Class 1-A4 Certificates, Accrued Certificate Interest will no longer be added
to
the Class Principal Amount thereof but will instead be distributed as interest
thereon.
(g) On
each
Distribution Date prior to the Accretion Termination Date for the Class 3-A4
Certificates and before the distributions have been made on such Distribution
Date pursuant to 3(c)(i)(B) and (D) as set forth on Exhibit O hereto, an amount
equal to the Accrual Amount allocable to the Class 3-A4 Certificates for such
date will be allocated to make distributions in respect of principal
pro
rata,
to the
Class 3-A1 and Class 3-A3 Certificates, based on their respective Class
Principal Amounts, until their respective Class Principal Amounts have been
reduced to zero. On each such date, the Accrual Amount for the Class 3-A4
Certificates and such date will be added to the Class Principal Amount thereof.
On each Distribution Date on or after the Accretion Termination Date for the
Class 3-A4 Certificates, Accrued Certificate Interest will no longer be added
to
the Class Principal Amount thereof but will instead be distributed as interest
thereon.
93
(h) On
each
Distribution Date, the Trustee shall distribute the Class P Distributable Amount
for such date to the Holder of the Class P Certificates.
(i) On
each
Distribution Date prior to the Group 1-2 Credit Support Depletion Date but
after
the date on which the total Certificate Principal Amount of the Non-AP Senior
Certificate or Certificates relating to Pool 1 or Pool 2 have been reduced
to
zero, amounts otherwise distributable as principal on each of the Group 1-2
Subordinate Certificates pursuant to Section 5.02(a)(vii), in reverse order
of
priority, in respect of such Class’s Subordinate Class Percentage of the
Subordinate Principal Distribution Amount for the Mortgage Pool relating to
such
retired Senior Certificates, shall be distributed as principal to the Non-AP
Senior Certificates (other than the Non-AP Senior Certificates related to Pool
3) remaining outstanding pursuant to Section 5.02(a)(iii) until the Class
Principal Amounts thereof have been reduced to zero, provided
that on
such Distribution Date (a) the Group 1-2 Subordinate Percentage for such
Distribution Date is less than 200% of the Group 1-2 Subordinate Percentage
as
of the Cut-off Date or (b) the average outstanding principal balance of the
Mortgage Loans in any of Pool 1 or Pool 2 that are delinquent 60 days or more
for the last six months (including for this purpose any REO Property or Mortgage
Loans in foreclosure or bankruptcy and the Scheduled Payments that would have
been due on Mortgage Loans with respect to which the related Mortgaged Property
has been acquired by the Trust Fund if the related Mortgage Loan had remained
in
existence) as a percentage of the related Group Subordinate Amount is greater
than or equal to 50%.
(ii) On
any
Distribution Date on which any Non-AP Senior Certificate or Certificates
relating to Pool 1 or Pool 2 constitute an Undercollateralized Class or Classes,
all amounts otherwise distributable as principal on the Group 1-2 Subordinate
Certificates, in reverse order of priority (other than amounts necessary to
pay
any AP Deferred Amounts or unpaid Interest Shortfalls) (or, following the Group
1-2 Credit Support Depletion Date, such other amounts described in the
immediately following sentence), will be distributed as principal to the
Undercollateralized Class or Classes pursuant to Section 5.02(a)(iii), until
the
total Certificate Principal Amount of the Undercollateralized Class or Classes
equals the Non-AP Pool Balance of the related Mortgage Pool (such distribution,
an “Undercollateralization Distribution”). In the event that any Non-AP Senior
Certificate or Certificates relating to Pool 1 or Pool 2 constitute an
Undercollateralized Class or Classes on any Distribution Date following the
Group 1-2 Credit Support Depletion Date, Undercollateralization Distributions
will be made from any Available Distribution Amount for the Mortgage Pools
(other than Pool 3) not related to an Undercollateralized Class or Classes
remaining after all required amounts have been distributed to the Non-AP Senior
Certificates related to such other Mortgage Pools. In addition, the amount
of
any unpaid Interest Shortfalls with respect to an Undercollateralized Class
on
any Distribution Date (including any Interest Shortfalls for such Distribution
Date) will be distributed to the Undercollateralized Class or Classes prior
to
the payment of any Undercollateralization Distributions from amounts otherwise
distributable as principal on the Group 1-2 Subordinate Certificates, in reverse
order of priority (or, following the Group 1-2 Credit Support Depletion Date,
as
provided in the preceding sentence).
94
(i)
On
each Distribution Date occurring after a Section 7.01(c) Purchase Event but
on
or prior to a Trust Fund Termination Event, the Trustee (or the Paying Agent
on
behalf of the Trustee), shall withdraw from the Certificate Account the
Available Distribution Amount (to the extent such amount is on deposit in the
Certificate Account), and shall allocate such amount to the interests issued
in
respect of the Lower Tier REMIC 1 Uncertificated Regular Interests created
pursuant to this Agreement and shall distribute such amount first,
to the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee, second,
to the
LTURI-holder, any remaining Available Distribution Amount to the extent payable
on the Lower Tier REMIC 1 Uncertificated Regular Interests as provided in the
Preliminary Statement, and third,
to the
Class LT-R Certificates.
Section 5.03. |
Allocation
of Realized Losses.
|
(a) (i)On
any
Distribution Date, (x) the applicable AP Percentage of the principal portion
of
each Realized Loss (other than any Excess Loss) in respect of a Discount
Mortgage Loan in a Mortgage Pool will be allocated to and reduce the Component
Principal Amount of the related Component of the Class AP Certificates until
its
Component Principal Amount has been reduced to zero; (y) the applicable Non-AP
Percentage of the principal portion of each Realized Loss (other than any Excess
Loss) in respect of a Mortgage Loan in Pool 3, shall be allocated in the
following order of priority:
first,
to the
Class 3B6 Certificates, in reduction of its Class Principal Amount, until the
Class Principal Amount thereof has been reduced to zero;
second,
to the
Class 3B5 Certificates, in reduction of its Class Principal Amount, until the
Class Principal Amount thereof has been reduced to zero;
third,
to the
Class 3B4 Certificates, in reduction of its Class Principal Amount, until the
Class Principal Amount thereof has been reduced to zero;
fourth,
to the
Class 3B3 Certificates, in reduction of its Class Principal Amount, until the
Class Principal Amount thereof has been reduced to zero;
fifth,
to the
Class 3B2 Certificates, in reduction of its Class Principal Amount, until the
Class Principal Amount thereof has been reduced to zero;
sixth,
to the
Class 3B1 Certificates, in reduction of its Class Principal Amount, until the
Class Principal Amount thereof has been reduced to zero; and
seventh,
to the
related Classes of Non-AP Senior Certificates, pro
rata,
in
accordance with their respective Class Principal Amounts; provided, however,
any
Realized Loss that would otherwise be allocable to the Class 3-A1, Class 3-A4
and Class 3-A5 Certificates will instead be allocated to the 3-A6 Certificates,
until the Class Principal Amount thereof has been reduced to zero.
95
and
(z)
the applicable Non-AP Percentage of the principal portion of each Realized
Loss
(other than any Excess Loss) in respect of a Mortgage Loan in any of Pool 1
or
Pool 2, shall be allocated in the following order of priority:
first,
to the
Class B7(1-2) Certificates, in reduction of its Class Principal Amount, until
the Class Principal Amount thereof has been reduced to zero;
second,
to the
Class B6(1-2) Certificates, in reduction of its Class Principal Amount, until
the Class Principal Amount thereof has been reduced to zero;
third,
to the
Class B5(1-2) Certificates, in reduction of its Class Principal Amount, until
the Class Principal Amount thereof has been reduced to zero;
fourth,
to the
Class B4(1-2) Certificates, in reduction of its Class Principal Amount, until
the Class Principal Amount thereof has been reduced to zero;
fifth,
to the
Class B3(1-2) Certificates, in reduction of its Class Principal Amount, until
the Class Principal Amount thereof has been reduced to zero;
sixth,
to the
Class B2(1-2) Certificates, in reduction of its Class Principal Amount, until
the Class Principal Amount thereof has been reduced to zero;
seventh,
to the
Class B1(1-2) Certificates, in reduction of its Class Principal Amount, until
the Class Principal Amount thereof has been reduced to zero; and
eighth,
to the
related Classes of Non-AP Senior Certificates, pro
rata,
in
accordance with their respective Class Principal Amounts; provided,
however,
that (i)
any Realized Loss that would otherwise be allocable to the Class 1-A4 and Class
1-A5 Certificates will instead be allocated, pro
rata,
to the
Class 1-A6 Certificates until the Class Principal Amount thereof has been
reduced to zero, and (ii) that any Realized Loss that would otherwise be
allocable to the Class 2-A1 Certificates will instead be allocated to the Class
2-A2 Certificates, until the Class Principal Amount thereof has been reduced
to
zero.
(b) (i)
With
respect to any Distribution Date, the applicable Non-AP Percentage of the
principal portion of any Excess Loss in respect of a Mortgage Loan in Pool
3
shall be allocated, pro
rata,
to the
Group 3 Subordinate Certificates and related Non-AP Senior Certificate or
Certificates on the basis of the Class Principal Amounts of such Certificates;
(ii) with respect to any Distribution Date, the applicable Non-AP Percentage
of
the principal portion of any Excess Loss in respect of a Mortgage Loan in any
of
Pool 1 or Pool 2 shall be allocated, pro
rata,
to the
Group 1-2 Subordinate Certificates and related Non-AP Senior Certificate or
Certificates on the basis of the Apportioned Principal Balances of the Group
1-2
Subordinate Certificates and Class Principal Amounts of the Non-AP Senior
Certificates; and (iii) the applicable AP Percentage of the principal portion
of
an Excess Loss (other than a Debt Service Reduction) in respect of a Mortgage
Loan in Pool 1 and Pool 3 will be applied to the AP(1) Component and the AP(3)
Component, respectively, until the Class Principal Amounts thereof have been
reduced to zero.
96
(c) Any
Realized Losses allocated to a Class of Certificates pursuant to Section 5.03(a)
or (b) shall be allocated among the Certificates of such Class in proportion
to
their respective Certificate Principal Amounts. Any allocation of Realized
Losses pursuant to this paragraph (c) shall be accomplished by reducing the
Certificate Principal Amounts of the related Certificates on the related
Distribution Date in accordance with Section 5.03(d).
(d) Realized
Losses allocated in accordance with this Section 5.03 shall be allocated on
the
Distribution Date in the month following the month in which such loss was
incurred and, in the case of the principal portion thereof, after giving effect
to distributions made on such Distribution Date, except that the aggregate
amount of Realized Losses to be allocated to the Class AP Certificates on such
Distribution Date will be taken into account in determining distributions in
respect of any related AP Deferred Amount for such date.
(e) On
each
Distribution Date, the Group 3 Component Writedown Amount for such date shall
effect a corresponding reduction in the Component Principal Amount of the lowest
ranking outstanding Group 3 Subordinate Component, which reduction shall occur
on such Distribution Date after giving effect to distributions made on such
Distribution Date; and (ii) on each Distribution Date, the Group 1-2 Component
Writedown Amount for such date shall effect a corresponding reduction in the
Component Principal Amount of the lowest ranking outstanding Group 1-2
Subordinate Component, which reduction shall occur on such Distribution Date
after giving effect to distributions made on such Distribution
Date.
(f) In
the
event that the class principal amount of the Underlying Certificates is reduced
as a result of an Underlying Realized Loss experienced with respect to the
Underlying Mortgage Loans, the Class Principal Amounts of the Class 4-A1 and
Class 4-A2 Certificates will be reduced proportionately, on the basis of their
respective Class Principal Amounts; provided
that all
Realized Losses that would otherwise be allocable to the Class 4-A1 Certificates
will instead be allocated to the Class 4-A2 Certificates, until the Class
Principal Amount thereof has been reduced to zero.
(g) On
any
Underlying Distribution Date on which the class principal amount of the
Underlying Certificates has been restored due to the application of an
Underlying Subsequent Recovery, the Class Principal Amounts of the of the Class
4-A1 and Class 4-A2 Certificates will be restored by an equal amount on a
pro
rata
basis.
Section 5.04. |
Advances
by the Master Servicer and the
Trustee.
|
97
(a) Advances
shall be made in respect of each Deposit Date as provided herein. If, on any
Determination Date, the Master Servicer determines that any Scheduled Payments
due during the related Due Period (other than Balloon Payments) have not been
received, the Master Servicer shall, or cause the applicable Servicer to,
advance such amount, less an amount, if any, to be set forth in an Officer’s
Certificate to be delivered to the Trustee on such Determination Date, which
if
advanced the Master Servicer or the applicable Servicer has determined would
not
be recoverable from amounts received with respect to such Mortgage Loan,
including late payments, Liquidation Proceeds, Insurance Proceeds or otherwise.
If the Master Servicer determines that an Advance is required, it shall on
the
Deposit Date immediately following such Determination Date either (i) remit
to
the Trustee from its own funds (or funds advanced by the applicable Servicer)
for deposit in the Certificate Account immediately available funds in an amount
equal to such Advance, (ii) cause to be made an appropriate entry in the records
of the Collection Account that funds in such account being held for future
distribution or withdrawal have been, as permitted by this Section 5.04, used
by
the Master Servicer to make such Advance, and remit such immediately available
funds to the Trustee for deposit in the Certificate Account or (iii) make
Advances in the form of any combination of clauses (i) and (ii) aggregating
the
amount of such Advance. Any funds being held in the Collection Account for
future distribution to Certificateholders and so used shall be replaced by
the
Master Servicer from its own funds by remittance to the Trustee for deposit
in
the Certificate Account on or before any future Deposit Date to the extent
that
funds in the Certificate Account on such Deposit Date shall be less than
payments to Certificateholders required to be made on the related Distribution
Date. The Trustee shall be entitled to conclusively rely upon any determination
by the Master Servicer that an Advance, if made, would constitute a
non-recoverable advance. The Master Servicer and the Servicer shall be entitled
to be reimbursed from the Collection Account for all Advances made by it as
provided in Section 4.02.
(b) In
the
event that the Master Servicer fails for any reason to make an Advance required
to be made pursuant to this Section 5.04, the Trustee, solely in its capacity
as
successor Master Servicer pursuant to Section 6.14, shall, on or before the
related Distribution Date, deposit in the Certificate Account an amount equal
to
the excess of (a) Advances required to be made by the Master Servicer that
would
have been deposited in such Certificate Account over (b) the amount of any
Advance made by the Master Servicer and the Servicer with respect to such
Distribution Date; provided,
however,
that
the Trustee shall be required to make such Advance only if it is not prohibited
by law from doing so and it has determined that such Advance would be
recoverable from amounts to be received with respect to such Mortgage Loan,
including late payments, Liquidation Proceeds, Insurance Proceeds, or otherwise.
The Trustee shall be entitled to be reimbursed from the Certificate Account
for
Advances made by it pursuant to this Section 5.04 as if it were the Master
Servicer.
Section 5.05. |
Compensating
Interest Payments.
|
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicer. Any Compensating Interest Payments made
by
the Servicer shall be a component of the Available Distribution
Amount.
98
Section 5.06. |
Supplemental
Interest Trust.
|
The
Trustee is hereby directed by the Depositor to accept the Cap Agreements on
behalf of a trust, separate from the Trust Fund, for the benefit of the Class
1-A1, Class 3-A1 and Class X Certificateholders in the form presented to it
by
the Depositor and shall have no responsibility for the contents, adequacy or
sufficiency of the Class 1-A1 Cap Agreement or the Class 3-A1 Cap Agreement,
including without limitation, the representations and warranties contained
therein.
Section 5.07. |
The
Reserve Funds.
|
(a)
On the
Closing Date, the Trustee shall establish and maintain in the name of the
Trustee, in the Supplemental Interest Trust for the benefit of the holders
of
the Class 1-A1 and Class X Certificates, the Class 1-A1 Reserve Fund, into
which
the Depositor shall deposit $1,000. The Trustee shall hold the Class 1-A1 Cap
Agreement as an asset in the Class 1-A1 Reserve Fund. The Class 1-A1 Reserve
Fund shall be an Eligible Account, and funds on deposit therein shall be held
separate and apart from, and shall not be commingled with, any other moneys,
including without limitation other moneys of the Trustee held pursuant to this
Agreement. The Class 1-A1 Reserve Fund shall not be an asset of any REMIC or
the
Trust Fund established hereby.
(b) On
each
Distribution Date, the Trustee on behalf of the Supplemental Interest Trust
shall distribute amounts on deposit in the Class 1-A1 Reserve Fund, first,
to the
Holders of the Class 1-A1 Certificates, in an amount up to any Basis Risk
Shortfalls on the Class 1-A1 Certificates and second,
to the
Holders of the Class 1-A1 Certificates, in an amount up to any Unpaid Basis
Risk
Shortfalls on the Class 1-A1 Certificates. Any remaining amounts shall be
retained in the Class 1-A1 Reserve Fund for distribution on future Distribution
Dates.
(c) Upon
the
earliest to occur of (i) the Distribution Date on which the Class Principal
Amount of the Class 1-A1 Certificates is reduced to zero, (ii) a Section 7.01(c)
Purchase Event or (iii) a Trust Fund Termination Event, any amounts remaining
in
the Class 1-A1 Reserve Fund and any future amounts payable under the Class
1-A1
Cap Agreement shall be distributed to the Class X
Certificateholder.
(d) On
the
Closing Date, the Trustee shall establish and maintain in the name of the
Trustee, in the Supplemental Interest Trust for the benefit of the holders
of
the Class 3-A1 and Class X Certificates, the Class 3-A1 Reserve Fund, into
which
the Depositor shall deposit $1,000. The Trustee shall hold the Class 3-A1 Cap
Agreement as an asset in the Class 3-A1 Reserve Fund. The Class 3-A1 Reserve
Fund shall be an Eligible Account, and funds on deposit therein shall be held
separate and apart from, and shall not be commingled with, any other moneys,
including without limitation other moneys of the Trustee held pursuant to this
Agreement. The Class 3-A1 Reserve Fund shall not be an asset of any REMIC or
the
Trust Fund established hereby.
(e) On
each
Distribution Date, the Trustee on behalf of the Supplemental Interest Trust
shall distribute amounts on deposit in the Class 3-A1 Reserve Fund, first,
to the
Holders of the Class 3-A1 Certificates, in an amount up to any Basis Risk
Shortfalls on the Class 3-A1 Certificates and second,
to the
Holders of the Class 3-A1 Certificates, in an amount up to any Unpaid Basis
Risk
Shortfalls on the Class 3-A1 Certificates. Any remaining amounts shall be
retained in the Class 3-A1 Reserve Fund for distribution on future Distribution
Dates.
99
(f) Upon
the
earliest to occur of (i) the Distribution Date on which the Class Principal
Amount of the Class 3-A1 Certificates is reduced to zero, (ii) a Section 7.01(c)
Purchase Event or (iii) a Trust Fund Termination Event, any amounts remaining
in
the Class 3-A1 Reserve Fund and any future amounts payable under the Class
3-A1
Cap Agreement shall be distributed to the Class X
Certificateholder.
(g) Funds
in
the Class 1-A1 Reserve Fund and Class 3-A1 Reserve Fund shall be invested in
Eligible Investments. The Class X Certificates shall evidence ownership of
the
Class 1-A1 Reserve Fund and Class 3-A1 Reserve Fund for federal income tax
purposes and LBH on behalf of the Holders thereof shall direct the Trustee,
in
writing, as to investment of amounts on deposit therein. LBH shall be liable
for
any losses incurred on such investments. In the absence of written instructions
from LBH as to investment of funds on deposit in the Class 1-A1 Reserve Fund
or
Class 3-A1 Reserve Fund, such funds shall remain uninvested.
For
federal income tax purposes, the Trustee shall treat the holders of the Class
1-A1 and Class 3-A1 Certificates as having entered into a notional principal
contract with the holders of the Class X Certificates. Pursuant to such notional
principal contract, all holders of the Class X Certificates shall be treated
as
having agreed to pay Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
to
the holders of the Class 1-A1 and Class 3-A1 Certificates. Any payments to
the
Class 1-A1 and Class 3-A1 Certificates in light of the foregoing shall not
be
payments with respect to a “regular interest” in a REMIC within the meaning of
Code Section 860G(a)(1). Notwithstanding the priority and sources of payments
set forth in Article V hereof or otherwise, the Trustee shall account for all
distributions on the Class 1-A1 and Class 3-A1 Certificates as set forth in
this
section. For purposes of providing tax information reporting with respect to
the
Class 1-A1 and Class 3-A1 Certificates, the Trustee shall treat the notional
principal contract described in this paragraph as having a value of
$614,248.96
and
$607,809.10,
respectively, as of the Closing Date.
ARTICLE
VI
CONCERNING
THE TRUSTEE;
EVENTS
OF
DEFAULT
Section 6.01. |
Duties
of Trustee.
|
(a) The
Trustee, except during the continuance of an Event of Default (of which a
Responsible Officer of the Trustee shall have actual knowledge), undertakes
to
perform such duties and only such duties as are specifically set forth in this
Agreement. Any permissive right of the Trustee provided for in this Agreement
shall not be construed as a duty of the Trustee. If an Event of Default (of
which a Responsible Officer of the Trustee shall have actual knowledge) has
occurred and has not otherwise been cured or waived, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement and use the same
degree of care and skill in their exercise as a prudent Person would exercise
or
use under the circumstances in the conduct of such Person’s own
affairs.
100
(b) The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are in the form required
by this Agreement; provided,
however,
that
the Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer to the Trustee pursuant to this
Agreement, and the Trustee shall not be required to recalculate or verify any
numerical information furnished to the Trustee pursuant to this
Agreement.
(c) The
Trustee shall not have any liability arising out of or in connection with this
Agreement, except for its negligence or willful misconduct.
Notwithstanding anything in this Agreement to the contrary, the Trustee shall
not be liable for special, indirect or consequential losses or damages of any
kind whatsoever (including, but not limited to, lost profits). No provision
of
this Agreement shall be construed to relieve the Trustee from liability for
its
own negligent action, its own negligent failure to act or its own willful
misconduct; provided,
however,
that:
(i) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
consent or direction of Holders of the Certificates as provided in Section
6.18
hereof;
(ii) For
all
purposes under this Agreement, the Trustee shall not be deemed to have notice
of
any Event of Default (other than resulting from a failure by the Master Servicer
(i) to remit funds (or to make Advances) or (ii) to furnish information to
the
Trustee when required to do so) unless a Responsible Officer of the Trustee
has
actual knowledge thereof or unless written notice of any event which is in
fact
such a default is received by the Trustee at the applicable Corporate Trust
Office, and such notice references the Holders of the Certificates and this
Agreement; and
(iii) No
provision of this Agreement shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it, and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Master Servicer under this Agreement except
during such time, if any, as the Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, the Master Servicer
in
accordance with the terms of this Agreement.
101
(d) The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided,
however,
that
the Trustee promptly shall remit to the Master Servicer upon receipt any such
complaint, claim, demand, notice or other document (i) which is delivered to
the
applicable Corporate Trust Office of the Trustee, (ii) of which a Responsible
Officer has actual knowledge, and (iii) which contains information sufficient
to
permit the Trustee to make a determination that the real property to which
such
document relates is a Mortgaged Property.
(e) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of Certificateholders of any Class holding Certificates which
evidence, as to such Class, Percentage Interests aggregating not less than
25%
as to the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred upon the
Trustee under this Agreement.
(f) The
Trustee shall not be held liable by reason of any insufficiency in any account
(except the Certificate Account) or the Basis Risk Reserve Fund held by or
on
behalf of the Trustee resulting from any investment loss on any Eligible
Investment included therein (except to the extent that the Trustee is the
obligor and has defaulted thereon).
(g) Except
as
otherwise provided herein, the Trustee shall not have any duty (A) to see to
any
recording, filing, or depositing of this Agreement or any agreement referred
to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any re-recording, re-filing or re-depositing of any thereof,
(B) to see to any insurance, (C) to see to the payment or discharge of any
tax,
assessment, or other governmental charge or any lien or encumbrance of any
kind
owing with respect to, assessed or levied against, any part of the Trust Fund
other than from funds available in the Collection Account or the Certificate
Account, or (D) to confirm or verify the contents of any reports or certificates
of the Servicer, the Master Servicer, the Cap Counterparty or Depositor
delivered to the Trustee pursuant to this Agreement believed by the Trustee
to
be genuine and to have been signed or presented by the proper party or
parties.
(h) The
Trustee shall not be liable in its individual capacity for an error of judgment
made in good faith by a Responsible Officer or other officers of the Trustee
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts.
(i) Notwithstanding
anything in this Agreement to the contrary, the Trustee shall not be liable
for
special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits), even if the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form
of
action.
102
(j) On
or
prior to the Closing Date, the Paying Agent and the Trustee shall each deliver
to the Sponsor, the Master Servicer and the Depositor a certification in the
form of Exhibit R attached hereto specifying the items it will address in its
assessment of compliance with the Servicing Criteria. On or before March 15
of
each calendar year in which the Depositor is required to file reports with
respect to the Trust Fund in accordance with the Exchange Act and the rules
and
regulations of the Commission, beginning with March 15, 2007, the Trustee shall
deliver to the Sponsor, the Master Servicer and the Depositor a report regarding
its assessment of compliance with the Servicing Criteria identified by such
Party pursuant to the preceding sentence hereof, as of and for the period ending
the end of the fiscal year ending no later than December 31 of the year prior
to
the year of delivery of the report. Each such report shall include (a) a
statement of the party’s responsibility for assessing compliance with the
Servicing Criteria applicable to such party, (b) a statement that such party
used the criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to
assess compliance with the applicable Servicing Criteria, (c) disclosure of
any
material instance of noncompliance identified by such party and (d) a statement
that a registered public accounting firm has issued an attestation report on
such party’s assessment of compliance with the applicable Servicing Criteria,
which report shall be delivered by the Trustee as provided in Section 6.01(k).
In addition, on or before March 15th of each calendar year in which the
Depositor is required to file reports with respect to the Trust Fund in
accordance with the Exchange Act and the rules and regulations of the
Commission, beginning with March 15, 2007, the Trustee shall, at its own
expense, furnish or cause to be furnished to the Sponsor and the Depositor
an
assessment of compliance and attestation of any Subservicer or Subcontractor
with respect to the Trustee.
(k) On
or
before March 15th of each calendar year in which the Depositor is required
to
file reports with respect to the Trust Fund in accordance with the Exchange
Act
and the rules and regulations of the Commission, beginning with March 15, 2007,
the Trustee shall, at its own expense, cause a firm of independent public
accountants (who may also render other services to Trustee), which is a member
of the American Institute of Certified Public Accountants, to furnish to the
Sponsor, the Master Servicer and the Depositor a report to the effect that
such
firm that attests to, and reports on, the assessment made by such asserting
party pursuant to Section 6.01(j) above, which report shall be made in
accordance with standards for attestation engagements issued or adopted by
the
Public Company Accounting Oversight Board. In addition, on or before March
15th
of each calendar year in which the Depositor is required to file reports with
respect to the Trust Fund in accordance with the Exchange Act and the rules
and
regulations of the Commission, beginning with March 15, 2007, the Trustee shall,
at its own expense, furnish to the Sponsor and the Depositor an assessment
of
compliance and attestation of any Subservicer or Subcontractor with respect
to
the Trustee.
103
(l) The
Trustee shall give prior written notice to the Sponsor, the Master Servicer
and
the Depositor of the appointment of any Subcontractor by it and a written
description (in form and substance satisfactory to the Sponsor and the
Depositor) of the role and function of each Subcontractor utilized by the
Trustee, specifying (A) the identity of each such Subcontractor and (B) which
elements of the servicing criteria set forth under Item 1122(d) of Regulation
AB
will be addressed in assessments of compliance and accountant’s attestations
provided by each such Subcontractor.
(m)
The
Trustee shall notify the Depositor, the Master Servicer and the Sponsor within
three (3) Business Days after the related Distribution Date of knowledge thereof
of any legal proceedings pending against the Paying Agent or the Trustee, as
applicable, of the type described in Item 1117 (§ 229.1117) of Regulation AB,
and (ii) if the Trustee, shall become (but only to the extent not previously
disclosed) at any time an affiliate of any of the parties listed on Exhibit
S
hereto. On or before March 1st
of each
year, the Depositor shall distribute the information in Exhibit S to the
Trustee.
(n) The
Trustee agrees to indemnify the Depositor and the Master Servicer, and their
respective directors, officers, employees and agents and the Trust Fund and
hold
each of them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other
costs, fees and expenses that any of them may sustain arising out of or based
upon any failure by the Trustee to comply with the provisions of Subsections
6.01(j) and 6.01(l) and 6.01(m) above; provided, however, that in
no event shall the Trustee be liable for any sepcial, consequential, indirect
or
punitive damages pursuant to this Section 6.01(n), even if advised of the
possibility of such damages.
Section 6.02. |
Certain
Matters Affecting the Trustee.
|
Except
as
otherwise provided in Section 6.01:
(i) The
Trustee may request, and may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer’s Certificate, certificate
of auditors, Opinion of Counsel or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document believed by it to be genuine and to have been signed or presented
by
the proper party or parties;
(ii) The
Trustee may consult with counsel and any advice of its counsel or Opinion of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
104
(iii) The
Trustee shall not be personally liable for any action taken, suffered or omitted
by it in good faith and reasonably believed by it to be authorized or within
the
discretion or rights or powers conferred upon it by this Agreement;
(iv) Unless
an
Event of Default shall have occurred and be continuing, the Trustee shall not
be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document (provided
the same
appears regular on its face), unless requested in writing to do so by Holders
of
at least a majority in Class Principal Amount (or Class Notional Amount) of
each
Class of Certificates; provided,
however,
that,
if the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable expense thereof
shall be paid by the Holders requesting such investigation;
(v) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians, or attorneys,
which agents, custodians or attorneys shall have any and all of the rights,
powers, duties and obligations of the Trustee conferred on them by such
appointment; provided
that the
Trustee shall continue to be responsible for its duties and obligations
hereunder to the extent provided herein; and provided,
further,
that
the Trustee shall not be responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due care by the
Trustee;
(vi) The
Trustee shall not be under any obligation to exercise any of the trusts or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto, in each case at the request, order
or direction of any of the Certificateholders pursuant to the provisions of
this
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(vii) The
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of such
act;
and
(viii) The
Trustee shall not be required to give any bond or surety in respect of the
execution of the Trust Fund created hereby or the powers granted
hereunder.
Section 6.03. |
Trustee
Not Liable for Certificates.
|
105
The
Trustee makes no representations as to the validity or sufficiency of this
Agreement, the Cap Agreements or of the Certificates (other than the certificate
of authentication on the Certificates) or the Lower Tier REMIC I Uncertificated
Regular Interests or of any Mortgage Loan, or related document save that the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against
it
in accordance with its terms except that such enforceability may be subject
to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law. The Trustee shall not be accountable for the use or
application by the Depositor of funds paid to the Depositor in consideration
of
the assignment of the Mortgage Loans to the Trust Fund by the Depositor or
for
the use or application of any funds deposited into the Collection Account,
the
Certificate Account, any Escrow Account or any other fund or account maintained
with respect to the Certificates. The Trustee shall not be responsible for
the
legality or validity of this Agreement or the validity, priority, perfection
or
sufficiency of the security for the Certificates or the Lower Tier REMIC I
Uncertificated Regular Interests issued or intended to be issued hereunder.
The
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder or
to
record this Agreement.
Section 6.04. |
Trustee
May Own Certificates.
|
The
Trustee and any Affiliate or agent of the Trustee in its individual or any
other
capacity may become the owner or pledgee of Certificates, may buy, sell, own,
hold and deal in the Certificates and may transact banking and trust services
with the other parties hereto with the same rights it would have if it were
not
Trustee or such agent.
Section 6.05. |
Eligibility
Requirements for Trustee.
|
The
Trustee hereunder shall at all times be (i) an institution insured by the FDIC
and (ii) a corporation or national banking association, organized and doing
business under the laws of any State or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation or national
banking association publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation or national banking association shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In case at any time either the Trustee shall cease
to be
eligible in accordance with provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section
6.06.
Section 6.06. |
Resignation
and Removal of Trustee.
|
(a) The
Trustee may at any time resign and be discharged from the trust hereby created
by giving written notice thereof to the Depositor and the Master Servicer.
Upon
receiving such notice of resignation, the Depositor will promptly appoint a
successor trustee by written instrument, one copy of which instrument shall
be
delivered to the resigning Trustee, one copy to the successor trustee and one
copy to the Master Servicer. If no successor trustee shall have been so
appointed and shall have accepted appointment within 30 days after the giving
of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
106
(b) If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.05 and shall fail to resign after written request
therefor by the Depositor, (ii) the Trustee shall become incapable of acting,
or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or
of
their property shall be appointed, or any public officer shall take charge
or
control of the Trustee or of their property or affairs for the purpose of
rehabilitation, conservation or liquidation, (iii) a tax is imposed or
threatened with respect to the Trust Fund by any state in which the Trustee
or
the Trust Fund held by the Trustee is located, (iv) the continued use of the
Trustee would result in a downgrading of the rating by the Rating Agencies
of
any Class of Certificates with a rating, or (v) the Trustee shall fail to
deliver the information or reports required pursuant to Sections 6.01(j) through
(m) hereto, then the Depositor shall remove the Trustee and appoint a successor
trustee by written instrument, one copy of which instrument shall be delivered
to the Trustee so removed, one copy to the successor trustee and one copy to
the
Master Servicer; provided, however, that if the Trustee is removed for
the failure to provide the accountant’s attestation pursuant to Section 6.01(k)
of this Agreement, the Trustee shall reimburse the Depositor for reasonable
out-of pocket costs incurred by the Depositor in providing for a successor
Trustee.
(c) The
Holders of more than 50% of the Class Principal Amount (or Class Notional
Amount) of each Class of Certificates may at any time upon 30 days’ written
notice to the Trustee and the Depositor remove the Trustee by such written
instrument, signed by such Holders or their attorney-in-fact duly authorized,
one copy of which instrument shall be delivered to the Depositor, one copy
to
the Trustee so removed and one copy to the Master Servicer; the Depositor shall
thereupon use its best efforts to appoint a mutually acceptable successor
trustee in accordance with this Section.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall become effective upon
payment of all unpaid amounts owed to the Trustee and acceptance of appointment
by the successor trustee, as provided in Section 6.07.
Section 6.07. |
Successor
Trustee.
|
(a) Any
successor trustee appointed as provided in Section 6.06 shall execute,
acknowledge and deliver to the Depositor, the Master Servicer and to its
predecessor trustee (i) an instrument accepting such appointment hereunder
and
(ii) if such successor trustee is appointed at any time during the period that
a
Form 10-K is being filed with respect to the Trust in accordance with the
Exchange Act and the rules and regulations of the Commission, the certification
required pursuant to the first sentence of Section 6.01(j) indicating which
Servicing Criteria are applicable to such successor trustee, and thereupon
the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to the successor trustee (or
assign to the Trustee its interest under the Custodial Agreement, to the extent
permitted thereunder) all Mortgage Files and documents and statements related
to
each Mortgage Files held by it hereunder, and shall duly assign, transfer,
deliver and pay over to the successor trustee the entire Trust Fund, together
with all necessary instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer and such of the record
or
copies thereof maintained by the predecessor trustee in the administration
hereof as may be requested by the successor trustee and shall thereupon be
discharged from all duties and responsibilities under this Agreement. In
addition, the Master Servicer and the predecessor trustee, shall execute and
deliver such other instruments and do such other things as may reasonably be
required to more fully and certainly vest and confirm in the successor trustee
all such rights, powers, duties and obligations.
107
(b) No
successor trustee shall accept appointment as provided in this Section unless
at
the time of such appointment such successor trustee shall be eligible under
the
provisions of Section 6.05.
(c) Upon
acceptance by a successor trustee of appointment as provided in this Section,
the Master Servicer shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register and to the Rating Agencies. The expenses of such mailing
shall be borne by the predecessor trustee.
Section 6.08. |
Merger
or Consolidation of Trustee.
|
Any
Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the corporate trust business of the Trustee, shall be the successor to the
Trustee hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided
that
such Person shall be eligible under the provisions of Section 6.05.
Section 6.09. |
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
(a) Notwithstanding
any other provisions hereof, at any time, the Trustee, the Depositor or the
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates shall each have the power
from time to time to appoint one or more Persons to act either as co-trustees
jointly with the Trustee, or as separate trustees, or as custodians, for the
purpose of holding title to, foreclosing or otherwise taking action with respect
to any Mortgage Loan outside the state where the Trustee has its principal
place
of business where such separate trustee or co-trustee is necessary or advisable
(or the Trustee has been advised by the Master Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state
in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in
any
state in which a property securing a Mortgage Loan is located or in any state
in
which any portion of the Trust Fund is located. The separate Trustees,
co-trustees, or custodians so appointed shall be trustees or custodians for
the
benefit of all the Certificateholders and shall have such powers, rights and
remedies as shall be specified in the instrument of appointment; provided,
however,
that no
such appointment shall, or shall be deemed to, constitute the appointee an
agent
of the Trustee. The obligation of the Trustee to make Advances (solely in its
capacity as successor Master Servicer) pursuant to Section 5.04 and 6.14 hereof
shall not be affected or assigned by the appointment of a co-trustee.
Notwithstanding
the foregoing, no such co-custodian or co-trustee shall be vested with any
powers, rights and remedies under this Agreement unless such party has agreed
to
comply with all Regulation AB requirements set forth under this Agreement or
the
related Custodial Agreement, as applicable.
108
(b) Every
separate trustee, co-trustee, and custodian shall, to the extent permitted
by
law, be appointed and act subject to the following provisions and
conditions:
(i) all
powers, duties, obligations and rights conferred upon the Trustee in respect
of
the receipt, custody and payment of moneys shall be exercised solely by the
Trustee;
(ii) all
other
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee, co-trustee, or custodian jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed the Trustee shall be incompetent or unqualified to perform
such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust Fund or any portion thereof in
any
such jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no
trustee or custodian hereunder shall be personally liable by reason of any
act
or omission of any other trustee or custodian hereunder; and
(iv) the
Trustee or the Certificateholders evidencing more than 50% of the Aggregate
Voting Interests of the Certificates may at any time accept the resignation
of
or remove any separate trustee, co-trustee or custodian, so appointed by it
or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee,
co-trustee or custodian shall refer to this Agreement and the conditions of
this
Article VI. Each separate trustee and co-trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in
its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
109
(d) Any
separate trustee, co-trustee or custodian may, at any time, constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. The Trustee shall not be responsible
for any action or inaction of any separate trustee, co-trustee or custodian.
If
any separate trustee, co-trustee or custodian shall die, become incapable of
acting, resign or be removed, all of its estates, properties, rights, remedies
and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor
trustee.
(e) No
separate trustee, co-trustee or custodian hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.05 hereunder
and
no notice to Certificateholders of the appointment shall be required under
Section 6.07 hereof.
(f) The
Trustee agrees to instruct the co-trustees, if any, to the extent necessary
to
fulfill the Trustee’s obligations hereunder.
(g) The
Trustee shall pay the reasonable compensation of the co-trustees to the extent,
and in accordance with the standards, specified in Section 6.12 hereof (which
compensation shall not reduce any compensation payable to the Trustee under
such
Section).
Section 6.10. |
Authenticating
Agents.
|
(a) The
Trustee may appoint one or more Authenticating Agents which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. Wherever
reference is made in this Agreement to the authentication of Certificates by
the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by
an Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America
or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or
examination by federal or state authorities.
(b) Any
Person into which any Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which any Authenticating Agent shall be a party,
or any Person succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the execution
or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
110
(c) Any
Authenticating Agent may at any time resign by giving at least 30 days’ advance
written notice of resignation to the Trustee and the Depositor. The Trustee
may
at any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and the Depositor. Upon
receiving a notice of resignation or upon such a termination, or in case at
any
time any Authenticating Agent shall cease to be eligible in accordance with
the
provisions of this Section 6.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No
Authenticating Agent shall have responsibility or liability for any action
taken
by it as such at the direction of the Trustee. Any Authenticating Agent shall
be
entitled to reasonable compensation for its services and, if paid by the
Trustee, it shall be a reimbursable expense pursuant to Section
6.12.
Section 6.11. |
Indemnification
of Trustee.
|
The
Trustee and its respective directors, officers, employees and agents shall
be
entitled to indemnification from the Trust Fund for any loss, liability or
expense incurred in connection with any legal proceeding or incurred without
negligence or willful misconduct on their part (it being understood that the
negligence or willful misconduct of any Custodian shall not constitute
negligence or willful misconduct on the part of the Trustee or its directors,
officers, employees or agents for such purpose), arising out of, or in
connection with, the acceptance or administration of the trusts created
hereunder or in connection with the performance of the Trustee’s duties
hereunder or under the Cap Agreements, the Mortgage Loan Sale Agreement, the
Securities Purchase Agreement, any Servicing Agreement or Custodial Agreement,
including any applicable fees and expenses payable pursuant to Section 6.12
and
the costs and expenses of defending themselves against any claim in connection
with the exercise or performance of any of their powers or duties hereunder,
provided
that:
(i) with
respect to any such claim, the Trustee shall have given the Depositor, the
Master Servicer and the Holders written notice thereof promptly after the
Trustee shall have knowledge thereof; provided
that
failure to so notify shall not relieve the Trust Fund of the obligation to
indemnify the Trustee;
(ii) while
maintaining control over its own defense, the Trustee shall cooperate and
consult fully with the Depositor in preparing such defense; and
(iii) notwithstanding
anything to the contrary in this Section 6.11, the Trust Fund shall not be
liable for settlement of any such claim by the Trustee entered into without
the
prior consent of the Depositor, which consent shall not be unreasonably
withheld.
The
Trustee shall be further indemnified by the Mortgage Loan Seller for and held
harmless against, any loss, liability or expense arising out of, or in
connection with, the provisions set forth in the third paragraph of Section
2.01(a) hereof, including, without limitation, all costs, liabilities and
expenses (including reasonable legal fees and expenses) of investigating and
defending itself against any claim, action or proceeding, pending or threatened,
relating to the provisions of such paragraph.
111
The
provisions of this Section 6.11 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
Section 6.12. |
Compensation
of the Trustee.
|
The
Trustee shall be entitled to (i) receive, and is authorized to pay to itself
the
amount of income or gain earned from the investment or other earnings of funds
in the Certificate Account and (ii) reimbursement of all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
this Agreement (including fees and expenses of its counsel and all persons
not
regularly in its employment), except for any expenses, disbursements and
advances that either (i) arise from its negligence, bad faith or willful
misconduct or (ii) do not constitute “unanticipated expenses” within the meaning
of Treasury Regulation 1.860G-1(b)(3)(ii). The Custodians shall be compensated
as separately agreed with the Depositor (or its affiliates).
The
Trustee shall be entitled to reimbursement of its reasonable expenses and
disbursements incurred or made in connection with a Section 7.01(c) Purchase
Event in accordance with Section 4.04(b). Each Custodian shall receive
compensation and reimbursement or payment of its expenses under the related
Custodial Agreement as provided therein; provided that, to the extent required
under Section 6 or Section 20 of the Custodial Agreement, the Trustee is hereby
authorized to pay such compensation or reimbursement from amounts on deposit
in
the Certificate Account prior to any distributions to Certificateholders
pursuant to Section 5.02 hereof.
Section 6.13. |
Collection
of Monies.
|
Except
as
otherwise expressly provided in this Agreement, the Trustee may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee pursuant to this Agreement. The Trustee
shall hold all such money and property received by it as part of the Trust
Fund
and shall distribute it as provided in this Agreement. If the Trustee shall
not
have timely received amounts to be remitted with respect to the Mortgage Loans
from the Master Servicer, the Trustee shall request the Master Servicer to
make
such distribution as promptly as practicable or legally permitted. If the
Trustee shall subsequently receive any such amount, it may withdraw such
request.
Section 6.14. |
Events
of Default; Trustee To Act; Appointment of Successor.
|
(a) The
occurrence of any one or more of the following events shall constitute an “Event
of Default”:
(i) Any
failure by the Master Servicer to furnish to the Trustee the Mortgage Loan
data
sufficient to prepare the reports described in Section 4.03(a) which continues
unremedied for a period of one (1) Business Day after the date upon which
written notice of such failure shall have been given to such Master Servicer
by
the Trustee or to such Master Servicer and the Trustee by the Holders of not
less than 25% of the Class Principal Amount (or Class Notional Amount) of each
Class of Certificates affected thereby; or
112
(ii) Any
failure on the part of the Master Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of such
Master Servicer contained in this Agreement which continues unremedied for
a
period of 30 days (or 15 days, in the case of a failure to maintain any
Insurance Policy required to be maintained pursuant to this Agreement) after
the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to such Master Servicer by the Trustee, or to such Master
Servicer and the Trustee by the Holders of not less than 25% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates
affected thereby; or
(iii) A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days or any Rating
Agency reduces or withdraws or threatens to reduce or withdraw the rating of
the
Certificates because of the financial condition or loan servicing capability
of
such Master Servicer; or
(iv) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, voluntary liquidation or similar proceedings of or relating to
such
Master Servicer or of or relating to all or substantially all of its property;
or
(v) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its
creditors or voluntarily suspend payment of its obligations; or
(vi) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer as specified in Section
9.27
hereof; or
(vii) If
a
representation or warranty set forth in Section 9.14 hereof shall prove to
be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Certificateholders, and the circumstance or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 60 days after the date on which
written notice of such incorrect representation or warranty shall have been
given to the Master Servicer by the Trustee or to the Master Servicer and the
Trustee by the Holders of not less than 25% of the Aggregate Certificate
Principal Amount of each Class of Certificates; or
113
(viii) A
sale or
pledge of the any of the rights of the Master Servicer hereunder or an
assignment of this Agreement by the Master Servicer or a delegation of the
rights or duties of the Master Servicer hereunder shall have occurred in any
manner not otherwise permitted hereunder and without the prior written consent
of the Trustee and Certificateholders holding more than 50% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates;
(ix) The
Master Servicer has notice or actual knowledge that any Servicer at any time
is
not either an FNMA- or FHLMC-approved Seller/Servicer, and the Master Servicer
has not terminated the rights and obligations of the Servicer under the
Servicing Agreement and replaced the Servicer with an FNMA- or FHLMC-approved
servicer within 60 days of the date the Master Servicer receives such notice
or
actual knowledge; or
(x) Any
failure of the Master Servicer to remit to the Trustee any payment required
to
be made to the Trustee for the benefit of Certificateholders under the terms
of
this Agreement, including any Advance, on any Deposit Date, which failure
continues unremedied for a period of one Business Day after the date upon which
notice of such failure shall have been given to the Master Servicer by the
Trustee.
If
an
Event of Default described in clauses (i) through (ix) of this Section 6.14
shall occur, then, in each and every case, subject to applicable law, so long
as
any such Event of Default shall not have been remedied within any period of
time
prescribed by this Section 6.14, the Trustee, by notice in writing to the Master
Servicer may, and shall, if so directed by Certificateholders evidencing more
than 50% of the Class Principal Amount (or Class Notional Amount) of each Class
of Certificates, terminate
all of the rights and obligations of the Master Servicer hereunder and in and
to
the Mortgage Loans and the proceeds thereof. If an Event of Default described
in
clause (x) of this Section 6.14 shall occur, then, in each and every case,
subject to applicable law, so long as such Event of Default shall not have
been
remedied within the time period prescribed by clause (x) of this Section 6.14,
the Trustee, by notice in writing to the Master Servicer, shall
promptly terminate
all of the rights and obligations of the Master Servicer hereunder and in and
to
the Mortgage Loans and the proceeds thereof. On or after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer, only in its capacity as Master Servicer under this Agreement, whether
with respect to the Mortgage Loans or otherwise, shall pass to and be vested
in
the Trustee and the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the defaulting Master Servicer as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of
such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents or otherwise. The
defaulting Master Servicer agrees to cooperate with the Trustee in effecting
the
termination of the defaulting Master Servicer’s responsibilities and rights
hereunder as Master Servicer including, without limitation, notifying the
Servicer of the assignment of the master servicing function and providing the
Trustee or its designee all documents and records in electronic or other form
reasonably requested by it to enable the Trustee or its designee to assume
the
defaulting Master Servicer’s functions hereunder and the transfer to the Trustee
for administration by it of all amounts which shall at the time be or should
have been deposited by the defaulting Master Servicer in the Collection Account
maintained by such defaulting Master Servicer and any other account or fund
maintained with respect to the Certificates or thereafter received with respect
to the Mortgage Loans. The Master Servicer being terminated shall bear all
costs
of a master servicing transfer, including but not limited to those of the
Trustee reasonably allocable to specific employees and overhead, legal fees
and
expenses, accounting and financial consulting fees and expenses, and costs
of
amending the Agreement, if necessary. Neither the Trustee nor any successor
Master Servicer shall have any liability for any acts or omissions of the
predecessor Master Servicer or for any breach of any representation or warranty
by such predecessor Master Servicer.
114
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 4.02(i), (ii), (iii), (iv), (v), (vi), (vii), (ix) and (xi) to the
extent such reimbursement relates to the period prior to such Master Servicer’s
termination.
If
any
Event of Default shall occur of which a Responsible Officer of the Trustee
has
actual knowledge, the Trustee shall promptly notify the Rating Agencies of
the
nature and extent of such Event of Default. The Trustee shall immediately give
written notice to the Master Servicer upon such Master Servicer’s failure to
remit funds to it by 12:00 p.m. (New York time) on the Deposit
Date.
(b) On
and
after the time the Master Servicer receives a notice of termination from the
Trustee pursuant to Section 6.14(a) or the Trustee receives the resignation
of
the Master Servicer evidenced by an Opinion of Counsel pursuant to Section
9.28
the Trustee, unless another master servicer shall have been appointed, shall
be
the successor in all respects to the Master Servicer in its capacity as such
under this Agreement and the transactions set forth or provided for herein
and
shall have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on the
Master Servicer hereunder, including the obligation to make Advances;
provided,
however,
that
any failure to perform such duties or responsibilities caused by the Master
Servicer’s or the Trustee’s failure to provide information required by this
Agreement shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no responsibility for any act or omission
of
the Master Servicer prior to the issuance of any notice of termination and
shall
have no liability relating to the representations and warranties of the Master
Servicer set forth in Section 9.14. In the Trustee’s capacity as such successor,
the Trustee shall have the same limitations on liability herein granted to
the
Master Servicer. As compensation therefor, the Trustee shall be entitled to
receive all compensation payable to the Master Servicer under this Agreement,
including the Master Servicing Fee.
115
(c) Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so act,
or
shall, if it is unable to so act, appoint a successor master servicer or
petition a court of competent jurisdiction to appoint, any established housing
and home finance institution servicer, master servicer, servicing or mortgage
servicing institution having a net worth of not less than $15,000,000 and
meeting such other standards for a successor master servicer as are set forth
in
this Agreement, as the successor to such Master Servicer in the assumption
of
all of the responsibilities, duties or liabilities of a master servicer, like
the Master Servicer. Any entity designated by the Trustee as a successor master
servicer may be an Affiliate of the Trustee, provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer or the Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Trust Fund for such Affiliate’s actions and omissions in performing its
duties hereunder. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of
payments on Mortgage Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted to the Master Servicer
hereunder. The Trustee and such successor shall take such actions, consistent
with this Agreement, as shall be necessary to effectuate any such succession
and
may make other arrangements with respect to the servicing to be conducted
hereunder which are not inconsistent herewith. The Master Servicer shall
cooperate with the Trustee, and any successor master servicer in effecting
the
termination of the Master Servicer’s responsibilities and rights hereunder
including, without limitation, notifying Mortgagors of the assignment of the
master servicing functions and providing the Trustee and successor master
servicer, as applicable, all documents and records in electronic or other form
reasonably requested by it to enable it to assume the Master Servicer’s
functions hereunder and the transfer to the Trustee or such successor master
servicer, as applicable, all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or the Lower Tier
REMIC I Uncertificated Regular Interests or thereafter be received with respect
to the Mortgage Loans. Neither the Trustee nor any other successor master
servicer shall be deemed to be in default hereunder by reason of any failure
to
make, or any delay in making, any distribution hereunder or any portion thereof
caused by (i) the failure of the Master Servicer to deliver, or any delay in
delivering, cash, documents or records to it, (ii) the failure of the Master
Servicer to cooperate as required by this Agreement, (iii) the failure of the
Master Servicer to deliver the Mortgage Loan data to the Trustee as required
by
this Agreement or (iv) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer. The Trustee shall be entitled to be
reimbursed from the Master Servicer (or by the Trust Fund if the Master Servicer
is unable to fulfill its obligations hereunder) for all costs associated with
the transfer of master servicing from the predecessor Master Servicer,
including, without limitation, any costs or expenses associated with the
complete transfer of all master servicing data and the completion, correction
or
manipulation of such master servicing data as may be required by the Trustee
to
correct any errors or insufficiencies in the master servicing data or otherwise
to enable the Trustee to master service the Mortgage Loans properly and
effectively. If the terminated Master Servicer does not pay such reimbursement
within thirty (30) days of its receipt of an invoice therefor, such
reimbursement shall be an expense of the Trust Fund and the Trustee shall be
entitled to withdraw such reimbursement from amounts on deposit in the
Certificate Account pursuant to Section 4.04; provided
that the
terminated Master Servicer shall reimburse the Trust for any such expense
incurred by the Trust Fund.
116
Section 6.15. |
Additional
Remedies of Trustee Upon Event of Default.
|
During
the continuance of any Event of Default, so long as such Event of Default shall
not have been remedied, the Trustee, in addition to the rights specified in
Section 6.14, shall have the right, in its own name and as trustee of an express
trust, to take all actions now or hereafter existing at law, in equity or by
statute to enforce its rights and remedies and to protect the interests, and
enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and
each
and every remedy shall be cumulative and in addition to any other remedy, and
no
delay or omission to exercise any right or remedy shall impair any such right
or
remedy or shall be deemed to be a waiver of any Event of Default.
Section 6.16. |
Waiver
of Defaults.
|
35%
or
more of the Aggregate Voting Interests of Certificateholders may waive any
default or Event of Default by the Master Servicer in the performance of its
obligations hereunder, except that a default in the making of any required
deposit to the Certificate Account that would result in a failure of the Trustee
to make any required payment of principal of or interest on the Certificates
may
only be waived with the consent of 100% of the affected Certificateholders.
Upon
any such waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 6.17. |
Notification
to Holders.
|
Upon
termination of the Master Servicer or appointment of a successor to the Master
Servicer, in each case as provided herein, the Trustee shall promptly mail
notice thereof by first class mail to the Certificateholders at their respective
addresses appearing on the Certificate Register. The Trustee shall also, within
45 days after the occurrence of any Event of Default known to a Responsible
Officer of the Trustee, give written notice thereof to the Certificateholders,
unless such Event of Default shall have been cured or waived prior to the
issuance of such notice and within such 45-day period.
Section 6.18. |
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
Subject
to the provisions of Section 8.01 hereof, during the continuance of any Event
of
Default, Holders of Certificates evidencing not less than 25% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement; provided,
however,
that
the Trustee shall be under no obligation to pursue any such remedy, or to
exercise any of the trusts or powers vested in it by this Agreement (including,
without limitation, (i) the conducting or defending of any administrative action
or litigation hereunder or in relation hereto and (ii) the terminating of the
Master Servicer or any successor master servicer from its rights and duties
as
master servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the cost, expenses and
liabilities which may be incurred therein or thereby; and, provided,
further,
that,
subject to the provisions of Section 8.01, the Trustee shall have the right
to
decline to follow any such direction if the Trustee, in accordance with an
Opinion of Counsel, determines that the action or proceeding so directed may
not
lawfully be taken or if the Trustee in good faith determines that the action
or
proceeding so directed would involve it in personal liability or be unjustly
prejudicial to the non-assenting Certificateholders.
117
Section 6.19. |
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
In
the
event that a Responsible Officer of the Trustee shall have actual knowledge
of
any action or inaction of the Master Servicer that would become an Event of
Default upon the Master Servicer’s failure to remedy the same after notice, the
Trustee shall give notice thereof to the Master Servicer. For all purposes
of
this Agreement, in the absence of actual knowledge by a Responsible Officer
of
the Trustee, the Trustee shall not be deemed to have knowledge of any failure
of
the Master Servicer or any other Event of Default unless notified in writing
by
the Depositor, the Master Servicer or a Certificateholder.
Section 6.20. |
Preparation
of Tax Returns and Reports to the Commission.
|
(a) The
Trustee shall prepare or cause to be prepared on behalf of the Trust Fund,
based
upon information calculated in accordance with this Agreement pursuant to
instructions given by the Depositor, and the Trustee shall file, federal tax
returns and appropriate state income tax returns and such other returns as
may
be required by applicable law relating to the Trust Fund, and shall file any
other documents to the extent required by applicable state tax law (to the
extent such documents are in the Trustee’s possession). The Trustee shall
forward copies to the Depositor of all such returns and Form 1099 supplemental
tax information and such other information within the control of the Trustee
as
the Depositor may reasonably request in writing, and shall forward to each
Certificateholder such forms and furnish such information within the control
of
the Trustee as are required by the Code and the REMIC Provisions to be furnished
to them, and will prepare and distribute to Certificateholders Form 1099
(supplemental tax information) (or otherwise furnish information within the
control of the Trustee) to the extent required by applicable law. The Master
Servicer will indemnify the Trustee for any liability of or assessment against
the Trustee resulting from any error in any of such tax or information returns
directly resulting from errors in the information provided by such Master
Servicer.
(b) The
Trustee shall prepare and file with the Internal Revenue Service (“IRS”), on
behalf of each REMIC, an application on IRS Form SS-4. The Trustee upon receipt
from the IRS of the Notice of Taxpayer Identification Number Assigned for each
REMIC, shall promptly forward copies of such notices to the Master Servicer
and
the Depositor. The Trustee will file an IRS Form 8811.
118
(c) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, within 10 days (or, if applicable, within such shorter
period of time as is required under the rules of the Commission) as in effect
from time to time (the “Rules”)) following each Distribution Date, the Trustee
shall, in accordance with industry standards and the Rules, prepare and file
with the Commission via the Electronic Data Gathering and Retrieval System
(“XXXXX”) the reports listed in subsections (d) through (f) of this Section 6.20
in respect of the Trust Fund as and to the extent required under the Exchange
Act, each of which reports and any amendment thereof shall be signed by the
Exchange Act Signing Party.
(d)
Reports Filed on Form 10-D.
(i) Within
15
days following each Distribution Date (or such later date as may be permissible
due to an extension of the filing deadline under the Exchange Act), the Trustee
will prepare and file on a Distribution Report on Form 10-D with respect to
the
Trust Fund, which Distribution Report shall include a copy of the Distribution
Date Statement prepared by the Trustee in respect of the related Distribution
Date detailing all data elements specified in Item 1121(a) of Regulation AB
other than those data elements specified in Item 1121(a)(11), (12) and (14);
provided, that, the Trustee shall have received from the Depositor, the Sponsor,
the Master Servicer, the Servicer, any Custodian, any Cap Counterparty or any
Subservicer or Subcontractor therefor, no later than [three] Business Days
after
the related Distribution Date, the following additional information, data,
and
materials, in a form suitable for conversion to the format required for filing
with the Commission via XXXXX, required to be included in the Distribution
Report on Form 10-D for such Distribution Date:
(A) Item
1 -
Distribution and Pool Performance Information (each of the data elements
specified in Item 1121(a)(11), (12) and (14) of Regulation AB);
(B)
Item
2 -
Legal Proceedings (information required by Item 1117 of Regulation
AB);
(C)
Item
3 -
Sale of Securities and Use of Proceeds (information required by Item 2 of Part
II of Form 10-Q);
(D)
Item
4 -
Defaults Upon Senior Securities (information required by Item 3 of Part II
of
Form 10-Q);
(E)
Item
5 -
Submission of Matters to a Vote of Security Holders (information required by
Item 4 of Part II of Form 10-Q);
(F)
Item
6 -
Significant Obligors of Pool Assets (information required by Item 1112(b) of
Regulation AB);
(G)
Item
7 -
Significant Enhancement Provider Information (information required by Items
1114(b)(2) and 1115(b) of Regulation AB);
119
(H)
Item
8 -
Other Information (all other information required to be disclosed on Form 8-K
during the period covered by the report and not yet reported); and
(I)
Iem
9 -
Exhibits (all exhibits required to be filed by Form 10-D and Item 601 of
Regulation S-K other than the Distribution Date Statement to be provided by
the
Trustee).
(ii) After
preparing the Form 10-D, the Trustee shall forward electronically a draft copy
of the Form 10-D to the Exchange
Act Signing Party for review and approval. If the Master Servicer is the
Exchange Act Signing Party and the Form 10-D includes Additional Form 10-D
Disclosure, then the Form 10-D shall also be electronically distributed to
the
Depositor for review and approval. No later than two Business Day prior to
the
15th
calendar
day after the related Distribution Date, a senior officer of the Exchange Act
Signing Party shall sign the Form 10-D and return an electronic or fax copy
of
such signed Form 10-D (with an original executed hard copy to follow by
overnight mail) to the Trustee.
If a
Form 10-D cannot be filed on time or if a previously filed Form 10-D needs
to be
amended, the Trustee will follow the procedures set forth in subsection (g)(ii)
of this Section 6.20. Promptly (but no later than one Business Day) after filing
with the Commission, the Trustee will make available on its internet website
a
final executed copy of each Form 10-D. Each party to this Agreement acknowledges
that the performance by the Trustee of its duties under this Section 6.20(d)
related to the timely preparation and filing of Form 10-D is contingent upon
such parties strictly observing all applicable deadlines in the performance
of
their duties under this Section 6.20(d). The Trustee shall have no liability
for
any loss, expense, damage, claim arising out of or with respect to any failure
to properly prepare and/or timely file such Form 10-D, where such failure
results from the Trustee’s inability or failure to obtain or receive, on a
timely basis, any information from any other party hereto needed to prepare
or
file such Form 10-D, not resulting from its own negligence, bad faith or willful
misconduct. The Trustee shall not be responsible (1) for the content of any
of
the information provided pursuant to clauses (d)(i)(A) - (I) above (unless
such
item is provided by and specific to the Trustee, in which case the Trustee
will
be responsible for the content of such information; provided
that such information is not revised without the prior consent of the
Trustee),
(2)
for determining whether any such information is required to be included in
any
Form 10-D, (3) for reformatting any information so that it is able to be filed
on XXXXX or (4) for the failure to include any information if it is not provided
to the Trustee on a timely basis (unless such item is specific to the Trustee,
in which case the Trustee will be responsible for the failure to include such
information, unless
such information is not included in the final Form 10-D without the consent
of
the Trustee).
(e) Reports
Filed on Form 10-K.
(i) On
or
prior to March 31 after the end of each fiscal year of the Trust Fund or such
earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”)
(it being understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2007, and, unless and until a Form 15 Suspension
Notification shall have been filed, the Trustee shall prepare and file (but
will
not execute) a Form 10-K in respect of the Trust Fund, which shall include
the
certification required pursuant to Rule 13a-14 under the Exchange Act (the
“Form
10-K Certification”) signed by an appropriate party or parties (which Form 10-K
Certification the Trustee shall not be required to prepare or sign) and such
other information as is required by the Rules; provided,
that,
the Trustee shall have received from the Depositor and the Servicer, each
Custodian, each Additional Servicer, any Servicing Function Participant and
the
Master Servicer (each, a “Reporting Servicer”), no later than March 1 of each
calendar year (and in the case of the Master Servicer, no later than the date
set forth in Section 9.25 herein) prior to the filing deadline for such Annual
Report, all information, data, assessments of compliance, accountant’s
attestations and exhibits required to be provided or filed with such Annual
Report including information, data, assessments of compliance, accountant’s
attestations and exhibits required to be provided in connection with the
following Items and other filing requirements of Form 10-K:
120
(A) Item
9B -
Other Information (information required to be reported on Form 8-K in the fourth
quarter but not reported);
(B) Item
15 -
Exhibits and Financial Statement Schedules (including all exhibits required
to
be filed pursuant to Item 601 of Regulation S-K under the Exchange Act other
than the certification specified in Item 601(b)(31)(ii) of Regulation S-K and
the Assessment of Compliance, Attestation Report, and Compliance Statement
specified in Item 601(b)(33), (34) and (35) of Regulation S-K with respect
to
those Servicing Criteria as to which the Trustee is the Item 1122 Responsible
Party);
(C) Significant
Obligor Financial Information (Item 1112(b) of Regulation AB);
(D) Significant
Enhancement Provider Financial Information (Items 1114(b)(2) and 1115(b) of
Regulation AB);
(E) Legal
Proceedings (Item 1117 of Regulation AB);
(F) Affiliations
and Certain Relationships and Related; Transactions (Item 1119 of Regulation
AB);
(G) Compliance
with Applicable Servicing Criteria (Item 1122 of Regulation AB);
and
(H) Servicer
Compliance Statement (Item 1123 of Regulation AB).
(ii) After
preparing the Form 10-K, the Trustee shall forward electronically a draft copy
of the Form 10-K to the Exchange
Act Signing Party for review and approval. If the Master
Servicer is
the
Exchange Act Signing Party and the Form 10-K includes Additional Form 10-K
Disclosure, then the Form 10-K shall also be electronically distributed to
the
Depositor for review and approval. No later than the close of business New
York
City time on the 4th Business Day prior to the 10-K Filing Deadline, a senior
officer of the Exchange
Act Signing Party
shall sign the Form 10-K and return an electronic or fax copy of such signed
Form 10-K (with an original executed hard copy to follow by overnight mail)
to
the Trustee.
If a
Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be
amended, the Trustee will follow the procedures set forth in subsection (g)
of
this Section 6.20. Promptly (but no later than one Business Day) after filing
with the Commission, the Trustee will make available on its internet website
a
final executed copy of each Form 10-K. The parties to this Agreement acknowledge
that the performance by the Trustee of its duties under this Section 6.20(e)
related to the timely preparation and filing of Form 10-K is contingent upon
such parties (and any Additional Servicer or Servicing Function Participant)
strictly observing all applicable deadlines in the performance of their duties
under this Section
6.20(e), Section 9.25(a), Section 9.25(b) and Section 9.26.
The
Trustee shall have no liability for any loss, expense, damage, claim arising
out
of or with respect to any failure to properly prepare and/or timely file such
Form 10-K, where such failure results from the Trustee’s inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-K, not
resulting from its own negligence, bad faith or willful misconduct. The Trustee
shall not be responsible (1) for the content of any of the information provided
pursuant to clauses (e)(i)(A) - (H) above (unless such item is provided by
and
specific to the Trustee, in which case the Trustee will be responsible for
the
content of such information; provided
that such information is not revised without the prior consent of the
Trustee),
(2)
for determining whether any such information is required to be included in
any
Form 10-K, (3) for reformatting any information so that it is able to be filed
on XXXXX or (4) for the failure to include any information if it is not provided
to the Trustee on a timely basis (unless such item is specific to the Trustee,
in which case the Trustee will be responsible for the failure to include such
information, unless
such information is not included in the final Form 10-K without the consent
of
the Trustee).
121
(iii) Unless
a
Form 15 Suspension Notification with respect to the Trust Fund has been filed,
if so requested, on or prior to March 15th
of each
year, beginning in March 2007, the Trustee shall sign a certification in the
form attached hereto as Exhibit Q (the “Back-Up Certification”) for the benefit
of Exchange Act Signing Party and the Person who signs the Form
10-K Certification (the “Certifying Party”) regarding certain aspects
of such Form 10-K Certification upon which the Exchange Act Signing Party and
the Certifying Person can reasonably rely (provided,
however,
that the
Trustee shall not be required to undertake an analysis of, and shall have no
responsibility for, any financial information, the accountant’s report,
certification or other materials contained therein, except for those
computations prepared by the Trustee and reflected in the distribution report).
Nothing in this Section 6.20(e) shall relieve the Trustee of its responsibility
for the matters as to which it is certifying in the form attached hereto as
Exhibit Q.
122
(iv) Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Fund for
any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal of
such
Person.
(f) Reports
Filed on Form 8-K.
(i) Within
four Business Days after the occurrence of an event requiring disclosure on
Form
8-K (each such event, a “Reportable Event”), at the written direction and
expense of the Depositor, the Trustee shall prepare and file Current Reports
on
Form 8-K in respect of the Trust Fund, as required by the Exchange Act;
provided,
that,
the Depositor shall have timely notified the Trustee of an item reportable
on a
Current Report on Form 8-K and shall have delivered to the Trustee no later
than
two Business Days prior to the filing deadline for such Current Report, all
information, data, and exhibits required to be provided or filed with such
Current Report, including, particularly, information, data and exhibits, in
a
form suitable for conversion to the format required for filing with the
Commission via XXXXX, required to be provided in connection with the following
Items of Form 8-K:
(A) Item
1.01
- Entry into a Material Definitive Agreement;
(B) Item
1.02
- Termination of a Material Definitive Agreement;
(C) Item
1.03
- Bankruptcy or Receivership;
(D) Item
2.04
- Triggering Events that Accelerate or Increase a Direct Financial Obligation
or
an Obligation under an Off-Balance Sheet Arrangement;
(E) Item
3.03
- Material Modification to Rights of Security Holders;
(F) Item
5.03
- Amendments of Articles of Incorporation or Bylaws; Change of Fiscal
Year;
(G) Item
6.02
- Change in Servicer or Trustee;
(H) Item
6.03
- Change in Credit Enhancement or Other External Support;
123
(I) Item
6.04
- Failure to Make a Required Distribution; and
(J) Item
6.05
- Securities Act Updating Disclosure.
(ii) After
preparing the Form 8-K, the Trustee shall forward electronically, no later
than
Noon New York City time on the 3rd
Business
Day after the Reportable Event, a draft copy of the Form 8-K to the Exchange
Act
Signing Party for review and approval. If the Master Servicer is the Exchange
Act Signing Party, then the Form 8-K shall also be electronically distributed
to
the Depositor for review and approval. No later than 1 p.m. New York
City time on the 4th
Business
Day after the Reportable Event, a senior officer of the Exchange Act Signing
Party shall sign the Form 8-K and return an electronic or fax copy of such
signed Form 8-K (with an original executed hard copy to follow by overnight
mail). If a Form 8-K cannot be filed on time or if a previously filed Form
8-K
needs to be amended, the Trustee will follow the procedures set forth in
subsection (g) of this Section 6.20. Promptly (but no later than one Business
Day) after filing with the Commission, the Trustee will, make available on
its
internet website a final executed copy of each Form 8-K. The parties to this
Agreement acknowledge that the performance by the Trustee of its duties under
this Section 6.20(f) related to the timely preparation and filing of Form 8-K
is
contingent upon such parties strictly observing all applicable deadlines in
the
performance of their duties under this Section 6.20(f). The Trustee shall have
no liability for any loss, expense, damage, claim arising out of or with respect
to any failure to properly prepare and/or timely file such Form 8-K, where
such
failure results from the Trustee’s inability or failure to obtain or receive, on
a timely basis, any information from any other party hereto needed to prepare
or
file such Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct. The Trustee shall not be responsible (1) for the content of any
of
the information provided pursuant to clauses (f)(i)(A) - (J) above (unless
such
item is provided by and specific to the Trustee, in which case the Trustee
will
be responsible for the content of such information; provided
that such information is not revised without the prior consent of the
Trustee),
(2)
for determining what information is required to be filed on a Form 8-K in
connection with the transactions contemplated by this Agreement (unless such
information is specific to the Trustee, in which case the Trustee will be
responsible for making such a determination, unless
such information is not included in the final Form 8-K without the consent
of
the Trustee),
(3)
for reformatting any information so that it is able to be filed on XXXXX or
(4)
for any late filing of a Form 8-K in the event that it does not receive all
information, data, signatures and exhibits required to be provided or filed
on
or prior to the second Business Day prior to the applicable filing
deadline.
(g) Delisting;
Amendments; Late Filings.
(i) Prior
to
January 30 in of the first year in which the Trustee is able to do so under
applicable law, unless otherwise directed by the Depositor in writing, the
Trustee shall prepare and file a Form 15 relating to the automatic suspension
of
reporting in respect of the Trust Fund under the Exchange Act.
124
(ii) In
the
event that the Trustee becomes aware that it will be unable to timely file
with
the Commission all or any required portion of any 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 Trustee will
immediately notify the Depositor. In the case of Form 10-D and 10-K, the parties
to this Agreement and the Servicer will cooperate to prepare and file a Form
12b-25 and a 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25 of the
Exchange Act. In the case of Form 8-K, the Trustee will, upon receipt of all
required Form 8-K Disclosure Information and upon the approval and direction
of
the Depositor, include such disclosure information on the next Form 10-D. In
the
event that any previously filed Form 8-K, 10-D or 10-K needs to be amended,
the
Trustee will notify the Depositor and each Servicer and such parties will
cooperate to prepare any necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form
12b-25 or any amendment to Form 8-K, 10-D or 10-K shall be signed by a senior
officer of the Exchange Act Signing Party. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
6.20(g) related to the timely preparation and filing of Form 15, a Form 12b-25
or any amendment to Form 8-K, 10-D or 10-K is contingent upon each such party
performing its duties under this Section. The Trustee shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file any such Form 15, Form 12b-25
or
any amendments to Forms 8-K, 10-D or 10-K, where such failure results from
the
Trustee’s inability or failure to obtain or receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K,
not resulting from its own negligence, bad faith or willful
misconduct.
(h) The
Trustee, with the prior consent of the Depositor, may include in any Exchange
Act report all relevant information, data, and exhibits as the Trustee may
receive in connection with such report irrespective of any provision that may
permit the exclusion of such material. For example, the Trustee, with the prior
consent of the Depositor, may file all Assessments of Compliance, Attestation
Reports and Compliance Statements timely received from any Item 1122 Responsible
Party irrespective of any applicable minimum pool asset percentage requirement
for disclosure related to such Item 1122 Responsible Party.
(i) Any
party
that signs any Exchange Act report that the Trustee is required to file shall
provide to the Trustee prompt notice of the execution of such Exchange Act
report along with the name and contact information for the person signing such
report and shall promptly deliver to the Trustee the original executed signature
page for such report. In addition, each of the parties agrees to provide to
the
Trustee such additional information related to such party as the Trustee may
reasonably request, including evidence of the authorization of the person
signing any certification or statement, financial information and reports,
and
such other information related to such party or its performance
hereunder.
(j) The
Depositor and the Master Servicer, by mutual agreement, shall determine which
of
the Depositor or the Master Servicer shall be the initial Exchange Act Signing
Party. Upon such determination, the Depositor shall timely notify the Trustee,
and such notice shall provide contact information for the Exchange Act Signing
Party. If the Depositor and Master Servicer, at any time, mutually agree to
change the indentity of the Exchange Act Signing Party, the Depositor shall
provide timely notice to the Trustee of any such change.
125
Section
6.21 Compliance
with Regulation AB.
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01
and
6.20 of this Agreement is to facilitate compliance by the Sponsor, the Master
Servicer, the Depositor and the Trustee with the provisions of Regulation AB,
as
such may be amended or clarified from time to time. Therefore, each of the
parties agrees that (a) the obligations of the parties hereunder shall be
interpreted in such a manner as to accomplish compliance with Regulation AB,
(b)
the parties’ obligations hereunder will be supplemented and modified as
necessary to be consistent with any such amendments, interpretive advice or
guidance from the Commission, convention or consensus among active participants
in the asset-backed securities markets, or otherwise in respect of the
requirements of Regulation AB and (c) the parties shall comply with reasonable
requests made by the Sponsor, the Master Servicer, the Depositor or the Trustee
for delivery of additional or different information, to the extent such
information is available or reasonably attainable, as the Sponsor, the Master
Servicer, the Depositor or the Trustee may determine in good faith is necessary
to comply with the provisions of Regulation AB.
ARTICLE
VII
PURCHASE
AND TERMINATION
OF
THE
TRUST FUND
Section 7.01. |
Termination
of Trust Fund Upon Repurchase or Liquidation of All Mortgage
Loans.
|
(a) The
respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders as set forth in Section 7.02, the obligation
of
the Master Servicer to make a final remittance to the Trustee for deposit into
the Certificate Account pursuant to Section 4.01 and the obligations of the
Master Servicer to the Trustee pursuant to Sections 9.10 and 9.14), shall
terminate upon the occurrence of the later of the following events: (A) receipt
by the Trustee of the final payment on the Underlying Certificates and the
distribution of all amounts required to be distributed to the Holders of the
Group 4 Certificates pursuant to this Agreement and (B) on the earlier of (i)
the final payment or other liquidation of the last Mortgage Loan remaining
in
the Trust Fund and the disposition of all REO Property, (ii) the sale of the
property held by the Trust Fund in accordance with Section 7.01(b) and (iii)
the
Latest Possible Maturity Date (each, a “Trust Fund Termination Event”);
provided,
however,
that in
no event shall the Trust Fund created hereby continue beyond the expiration
of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James’s,
living on the date hereof or beyond the Latest Possible Maturity Date. Upon
the
occurrence of a Trust Fund Termination Event, each REMIC shall be terminated
in
a manner that shall qualify as a “qualified liquidation” under the REMIC
Provisions.
126
(b) On
any
Distribution Date occurring after the date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans is less than 10% of the Cut-off Date
Aggregate Principal Balance (the “Initial Optional Termination Date”), the
Master Servicer or LTURI-holders, as applicable, may, upon written direction
to
the Trustee (delivered no later than 30 days prior to the anticipated sale
date), cause (i) the Trustee to sell (or arrange for the sale of) the assets
of
the Trust Fund (other than the Underlying Certificates) and (ii) the Trust
Fund
to adopt a plan of complete liquidation pursuant to Section 7.03(a)(i) hereof
to
sell all of its property (other than the Underlying Certificates). The property
of the Trust Fund (other than the Underlying Certificates) shall be sold at
a
price (the “Termination Price”) equal to the sum of: (i) 100% of the unpaid
principal balance of each Mortgage Loan on the day of such purchase plus
interest
accrued thereon at the applicable Mortgage Rate with respect to any Mortgage
Loan to the Due Date in the Due Period immediately preceding the related
Distribution Date to the date of such repurchase, (ii) the fair market value
of
any REO Property and any other property held by any REMIC (other than the
Underlying Certificates), such fair market value to be determined by an
appraiser or appraisers appointed by the Master Servicer and reasonably
acceptable to the Trustee (reduced, in the case of REO Property, by (1)
reasonably anticipated disposition costs (as determined by the Master Servicer
plus
interest
accrued thereon at the applicable Net Mortgage Rate to the date of purchases)
and (2) any amount by which the fair market value as so reduced exceeds the
outstanding principal balance of the related Mortgage Loan) and (iii) any
unreimbursed Servicing Advances with respect to each Mortgage Loan.
(c) On
any
Distribution Date occurring on or after the Initial Optional Termination Date,
the Master Servicer, with the prior written consent of the Seller, which consent
shall not be unreasonably withheld, has the option to purchase all of the Lower
Tier REMIC 1 Uncertificated Regular Interests. Upon exercise of such option,
the
Lower Tier REMIC 1 Uncertificated Regular Interests shall be sold to the Master
Servicer at a price (the “Lower Tier REMIC 1 Uncertificated Regular Interests
Purchase Price”) equal to the sum of (i) 100% of the unpaid principal balance of
each Mortgage Loan on the day of such purchase plus interest accrued thereon
at
the applicable Mortgage Rate with respect to any Mortgage Loan to the Due Date
in the Collection Period immediately preceding the related Distribution Date
to
the date of such repurchase and (ii) the fair market value of any REO Property
and any other property held by any REMIC (other than the Underlying
Certificates), such fair market value to be determined by an independent
appraiser or appraisers mutually agreed upon by the Master Servicer and the
Trustee (reduced, in the case of REO Property, by (1) reasonably anticipated
disposition costs and (2) any amount by which the fair market value as so
reduced exceeds the outstanding principal balance of the related Mortgage Loan
plus interest accrued thereon at the applicable Net Mortgage Rate to the date
of
such purchase). If the Master Servicer elects to exercise such option, each
REMIC created pursuant to this Agreement (other than REMIC I and REMIC X) shall
be terminated in such a manner so that the termination of each such REMIC shall
qualify as a “qualified liquidation” under the REMIC Provisions and the Lower
Tier REMIC 1 Uncertificated Regular Interests and the Class LT-R Certificates
will evidence the entire beneficial interest in the property of the Trust Fund
(other than the Underlying Certificates). Following a purchase of the Lower
Tier
REMIC 1 Uncertificated Regular Interests pursuant to this subsection, the Trust
Fund (and REMIC I) will remain outstanding and final payment on the Certificates
(other than the Class LT-R Certificates) will be made in accordance with
Sections 7.03(a)(iii) and 5.02 (and REMIC X shall not be affected thereby).
The
Trust Fund will terminate upon the occurrence of a Trust Fund Termination Event,
in accordance with Section 7.01(a).
127
Section 7.02. |
Procedure
Upon Termination of Trust Fund.
|
(a) Notice
of
any Trust Fund Termination Event and notice of the purchase of the Lower Tier
REMIC 1 Uncertificated Regular Interests, specifying the Distribution Date
upon
which the final distribution to the Certificates (other than the Class LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests) shall be made, shall be given promptly by the Trustee by
first class mail to Certificateholders (other than the Holders of the Group
4
Certificates) mailed no later than 5 Business Days after the Trustee has
received notice from the Master Servicer of its election to cause (x) the sale
of all of the property of the Trust Fund pursuant to Section 7.01(b), (y) the
purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests pursuant
to
Section 7.01(c), or (z) upon the final payment or other liquidation of the
last
Mortgage Loan or REO Property in the Trust Fund. Notice of any termination
pursuant to the provisions of Section 7.01(a)(A), specifying the Distribution
Date upon which the final distribution shall be made, shall be given promptly
by
the Trustee by first class mail to the Holders of the Group 4 Certificates
mailed (x) no later than five Business Days after the Trustee has received
notice from the Underlying Trustee that it has received notice from the
Underlying Master Servicer of its election to cause (x) the sale of all of
the
property of the Underlying Trust Fund pursuant to Section 7.01(b), (y) the
purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests pursuant
to
Section 7.01(c), or (z) upon the final payment or other liquidation of the
last
Mortgage Loan or REO Property in the Underlying Trust Fund. In the case of
a
Trust Fund Termination Event, the Trustee shall also give notice to the Master
Servicer and the Certificate Registrar at the time notice is given to Holders
of
the Certificates.
In
the
case of a Trust Fund Termination Event, such notice shall specify (A) the
Distribution
Date
upon which final distribution on the Certificates or Lower Tier REMIC 1
Uncertificated Regular Interests of all amounts required to be distributed
to
Certificateholders pursuant to Section 5.02 will be made upon presentation
and
surrender of the Certificates at the Corporate Trust Office, and (B) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Certificates
at the office or agency of the Trustee therein specified. Upon any such Trust
Fund Termination Event, the duties of the Certificate Registrar with respect
to
the Certificates or Lower Tier REMIC 1 Uncertificated Regular Interests shall
terminate and the Trustee shall terminate or request the Master Servicer to
terminate, the Collection Account it maintains, the Certificate Account and
any
other account or fund maintained with respect to the Certificates or Lower
Tier
REMIC 1 Uncertificated Regular Interests, subject to the Trustee’s obligation
hereunder to hold all amounts payable to Certificateholders in trust without
interest pending such payment.
128
In
the
case of a purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests,
such notice shall specify (A) the Distribution Date upon which final
distribution on the Certificates (other than the Class LT-R Certificates and
the
Group 4 Certificates) of all amounts required to be distributed to
Certificateholders pursuant to Section 5.02 (other than any distributions to
the
Class LT-R Certificates in respect of REMIC I and the Group 4 Certificates)
will
be made upon presentation and surrender of the Certificates (other than the
Class LT-R Certificates) at the Corporate Trust Office, and (B) that the Record
Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Certificates
(other than the Class LT-R Certificates and the Group 4 Certificates) at the
office or agency of the Trustee therein specified. Upon any such purchase of
the
Lower Tier REMIC 1 Uncertificated Regular Interests, the duties of the
Certificate Registrar with respect to the Certificates other than the Class
LT-R
Certificate and the Group 4 Certificates shall terminate but the Trustee shall
not terminate or request the Master Servicer to terminate, the Collection
Account it maintains, the Certificate Account and any other account or fund
maintained with respect to the Certificates, subject to the Trustee’s obligation
hereunder to hold all amounts payable to Certificateholders in trust without
interest pending such payment. For all Distribution Dates following the
Distribution Date on which the Master Servicer purchases the Lower Tier REMIC
1
Uncertificated Regular Interests, all amounts that would be distributed on
the
Certificates (other than the Class LT-R Certificate and the Group 4 Certificates
and exclusive of amounts payable from any fund held outside of REMIC I) absent
such purchase shall be payable to the LTURI-holder.
(b) In
the
event that all of the applicable Holders do not surrender their Certificates
for
cancellation within three months after the time specified in the above-mentioned
written notice, the Trustee shall give a second written notice to such
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within one year after the second
notice any such Certificates shall not have been surrendered for cancellation,
the Trustee may take appropriate steps to contact such remaining
Certificateholders concerning surrender of such Certificates, and the cost
thereof shall be paid out of the amounts distributable to such Holders. If
within two years after the second notice such Certificates shall not have been
surrendered for cancellation, the Trustee shall, subject to applicable state
law
relating to escheatment, hold all amounts distributable to such Holders for
the
benefit of such Holders. No interest shall accrue on any amount held by the
Trustee and not distributed to a Certificateholder due to such
Certificateholder’s failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section.
(c) Any
reasonable expenses incurred by the Trustee in connection with any Trust Fund
Termination Event or any purchase of the Lower Tier REMIC I Uncertificated
Regular Interests shall be reimbursed from proceeds received from the
liquidation of the Trust Fund.
129
Section 7.03. |
Additional
Requirements for any Trust Fund Termination Events or Purchase of
the
Lower Tier REMIC 1 Uncertificated Regular Interests.
|
(a) Any
termination of the Trust Fund pursuant to Section 7.01(a) or any termination
of
a REMIC pursuant to Section 7.01(c) shall be effected in accordance with the
following additional requirements (and such requirements shall apply with
respect to REMIC I in the case of an optional termination described in Section
7.01(b) if the Group 4 Certificates remain outstanding at the time of such
optional termination), unless the Trustee seeks (at
the
request of the party exercising the option to purchase all of the Mortgage
Loans
or
Lower
Tier REMIC 1 Uncertificated Regular Interests pursuant to Section 7.01(b) or
Section 7.01(c), respectively), and subsequently receives, an Opinion of Counsel
(at the expense of such requesting party), addressed to the Trustee to the
effect that the failure to comply with the requirements of this Section 7.03
will not result in an Adverse REMIC Event:
(i) Within
89
days prior to the time of the making of the final payment on the Certificates
other than the Class LT-R Certificates, in the case of a purchase of the Lower
Tier REMIC 1 Uncertificated Regular Interests, upon notification by the Master
Servicer or an Affiliate of the Seller that it intends to exercise its option
to
cause the termination of the Trust Fund or purchase the Lower Tier REMIC 1
Uncertificated Regular Interests, the Trustee shall adopt a plan of complete
liquidation on behalf of each REMIC other than REMIC X (other than REMIC I,
in
the case of a purchase of the Lower Tier REMIC 1 Uncertificated Regular
Interests), meeting the requirements of a qualified liquidation under the REMIC
Provisions;
(ii) Any
sale
of the assets of the Trust Fund (other than the Underlying Certificates) or
the
Lower Tier REMIC 1 Uncertificated Regular Interests pursuant to Section 7.02
shall be a sale for cash and shall occur at or after the time of adoption of
such a plan of complete liquidation and prior to the time of making of the
final
payment on the Certificates other than the Group 4 Certificates (other than
the
Class LT-R Certificates, in the case of a purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests);
(iii) On
the
date specified for final payment of the Certificates other than the Group 4
Certificates (other than the Class LT-R Certificates, in the case of a purchase
of the Lower Tier REMIC 1 Uncertificated Regular Interests), the Trustee shall
make final distributions of principal and interest on such Certificates in
accordance with Section 5.02. In the case of a Trust Fund Termination Event,
and, after payment of, or provision for any outstanding expenses, the Trustee
shall distribute or credit, or cause to be distributed or credited, to the
Holders of the Residual Certificates all cash on hand after such final payment
(other than cash retained to meet claims), and the Trust Fund (and each REMIC)
shall terminate at that time; and
130
(iv) In
no
event may the final payment on the Certificates or the final distribution or
credit to the Holders of the Residual Certificates in respect of the residual
interest in any liquidated REMIC be made after the 89th day from the date on
which the plan of complete liquidation for such REMIC is adopted.
(b) By
its
acceptance of a Residual Certificate, each Holder thereof hereby (i) authorizes
the Trustee to take the action described in paragraph (a) above and (ii) agrees
to take such other action as may be necessary to facilitate liquidation of
each
REMIC created under this Agreement, which authorization shall be binding upon
all successor Residual Certificateholders.
(c) In
connection with the termination of the Trust Fund or a Section 7.01(c) Purchase
Event, the Trustee may request an Opinion of Counsel addressed to the Trustee
(at the expense of the Depositor) to the effect that all of the requirements
of
a qualified liquidation under the REMIC Provisions have been met.
ARTICLE
VIII
RIGHTS
OF
CERTIFICATEHOLDERS
Section 8.01. |
Limitation
on Rights of Holders.
|
(a) The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of this Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any
of
them. Except as otherwise expressly provided herein, no Certificateholder,
solely by virtue of its status as a Certificateholder, shall have any right
to
vote or in any manner otherwise control the Master Servicer or the operation
and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association, nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(b) No
Certificateholder, solely by virtue of its status as Certificateholder, shall
have any right by virtue or by availing of any provision of this Agreement
to
institute any suit, action or proceeding in equity or at law upon or under
or
with respect to this Agreement, unless such Holder previously shall have given
to the Trustee a written notice of an Event of Default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Class Notional
Amount) of Certificates of each Class shall have made written request upon
the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it
may require against the cost, expenses and liabilities to be incurred therein
or
thereby, and the Trustee, for sixty days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any
such action, suit or proceeding and no direction inconsistent with such written
request has been given such Trustee during such sixty-day period by such
Certificateholders; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other Certificateholder and
the
Trustee, that no one or more Holders of Certificates shall have any right in
any
manner whatever by virtue or by availing of any provision of this Agreement
to
affect, disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to
any
other such Holder, or to enforce any right under this Agreement, except in
the
manner herein provided and for the benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
131
Section 8.02. |
Access
to List of Holders.
|
(a) If
the
Trustee is not acting as Certificate Registrar, the Certificate Registrar will
furnish or cause to be furnished to the Trustee, within fifteen days after
receipt by the Certificate Registrar of a request by the Trustee in writing,
a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Certificateholders of each Class as of the most recent Record
Date.
(b) If
three
or more Holders or Certificate Owners (hereinafter referred to as “Applicants”)
apply in writing to the Trustee, and such application states that the Applicants
desire to communicate with other Holders with respect to their rights under
this
Agreement or under the Certificates and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, afford such
Applicants reasonable access during the normal business hours of the Trustee
to
the most recent list of Certificateholders held by the Trustee or shall, as
an
alternative, send, at the Applicants’ expense, the written communication
proffered by the Applicants to all Certificateholders at their addresses as
they
appear in the Certificate Register.
(c) Every
Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving
and holding a Certificate, agrees with the Depositor, the Master Servicer,
the
Certificate Registrar and the Trustee that neither the Depositor, the Master
Servicer, the Certificate Registrar nor the Trustee shall be held accountable
by
reason of the disclosure of any such information as to the names and addresses
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 8.03. |
Acts
of Holders of Certificates.
|
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced
by
one or more instruments of substantially similar tenor signed by such Holders
in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or
instruments are delivered to the Trustee and, where expressly required herein,
to the Master Servicer. Such instrument or instruments (as the action embodies
therein and evidenced thereby) are herein sometimes referred to as an “Act” of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agents shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Trustee and
Master Servicer, if made in the manner provided in this Section. Each of the
Trustee and the Master Servicer shall promptly notify the others of receipt
of
any such instrument by it, and shall promptly forward a copy of such instrument
to the others.
132
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
or
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by an
officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the individual executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The
ownership of Certificates or Lower Tier REMIC I Uncertificated Regular Interests
(whether or not such Certificates or Lower Tier REMIC I Uncertificated Regular
Interests shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by anyone other than the Trustee) shall be proved
by
the Certificate Register, and neither the Trustee, the Master Servicer, nor
the
Depositor shall be affected by any notice to the contrary.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Certificate or Lower Tier REMIC I Uncertificated
Regular Interests shall bind every future Holder of the same Certificate and
the
Holder of every Certificate or Lower Tier REMIC I Uncertificated Regular
Interests issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered
to
be done by the Trustee or the Master Servicer in reliance thereon, whether
or
not notation of such action is made upon such Certificate or Lower Tier REMIC
I
Uncertificated Regular Interests.
Section
8.04. Rights
of Certificateholders as Holders of the Underlying Certificates.
The
Depositor hereby expressly agrees that each Holder of a Group 4 Certificate,
to
the extent of its ownership interest in the Underlying Certificates, shall
have
the same rights against the Depositor, acting in its capacity as depositor
with
respect to the Underlying Trust Fund, as if such Certificateholder held the
Underlying Certificates directly, and by acceptance of their Certificates or
interests therein, the Holders of the Group 4 Certificates shall be deemed
to
have appointed the Trustee, as agent to enforce such rights.
133
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE
MASTER SERVICER
Section 9.01. |
Duties
of the Master Servicer.
|
The
Certificateholders, by their purchase and acceptance of the Certificates or
Lower Tier REMIC I Uncertificated Regular Interests, appoint Aurora Loan
Services LLC, as Master Servicer. For and on behalf of the Depositor, the
Trustee and the Certificateholders, the Master Servicer shall master service
the
Mortgage Loans in accordance with the provisions of this Agreement and the
provisions of the Servicing Agreement.
Section 9.02. |
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
|
(a) The
Master Servicer, at its expense, shall maintain in effect a 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 that would meet
the requirements of FNMA or FHLMC if it were the purchaser of the Mortgage
Loans. The Master Servicer shall (i) require the Servicer to maintain an Errors
and Omissions Insurance Policy and a Fidelity Bond in accordance with the
provisions of the Servicing Agreement, (ii) cause the Servicer to provide to
the
Master Servicer certificates evidencing that such policy and bond is in effect
and to furnish to the Master Servicer any notice of cancellation, non-renewal
or
modification of the policy or bond received by it, as and to the extent provided
in the Servicing Agreement, and (iii) furnish copies of the certificates and
notices referred to in clause (ii) to the Trustee upon its request. The Fidelity
Bond and Errors and Omissions Insurance Policy may be obtained and maintained
in
blanket form.
(b) The
Master Servicer shall promptly report to the Trustee any material changes that
may occur in the Master Servicer Fidelity Bond or the Master Servicer Errors
and
Omissions Insurance Policy and shall furnish to the Trustee, on request,
certificates evidencing that such bond and insurance policy are in full force
and effect. The Master Servicer shall promptly report to the Trustee all cases
of embezzlement or fraud, if such events involve funds relating to the Mortgage
Loans. The total losses, regardless of whether claims are filed with the
applicable insurer or surety, shall be disclosed in such reports together with
the amount of such losses covered by insurance. If a bond or insurance claim
report is filed with any of such bonding companies or insurers, the Master
Servicer shall promptly furnish a copy of such report to the Trustee. Any
amounts relating to the Mortgage Loans collected by the Master Servicer under
any such bond or policy shall be promptly remitted by the Master Servicer to
the
Trustee for deposit into the Certificate Account. Any amounts relating to the
Mortgage Loans collected by any Servicer under any such bond or policy shall
be
remitted to the Master Servicer to the extent provided in the Servicing
Agreement.
134
Section 9.03. |
Master
Servicer’s Financial Statements and Related Information.
|
For
each
year this Agreement is in effect, the Master Servicer shall submit to the
Trustee, each Rating Agency and the Depositor a copy of its annual unaudited
financial statements on or prior to March 15 of each year, commencing March
15,
2007. Such financial statements shall include a balance sheet, income statement,
statement of retained earnings, statement of additional paid-in capital,
statement of changes in financial position and all related notes and schedules
and shall be in comparative form, certified by a nationally recognized firm
of
Independent Accountants to the effect that such statements were examined and
prepared in accordance with generally accepted accounting principles applied
on
a basis consistent with that of the preceding year.
Section 9.04. |
Power
to Act; Procedures.
|
(a) The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, and the Servicer shall have full power and authority (to
the
extent provided in the Servicing Agreement) to do any and all things that it
may
deem necessary or desirable in connection with the servicing and administration
of the Mortgage Loans, including but not limited to the power and authority
(i)
to execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement and Servicing
Agreement, as applicable; provided
that the
Master Servicer shall not take, or knowingly permit any Servicer to take, any
action that is inconsistent with or prejudices the interests of the Trust Fund,
the Trustee or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor, the Trustee and the Certificateholders under this
Agreement. The Master Servicer further is authorized and empowered by the
Trustee, on behalf of the Certificateholders and the Trustee, in its own name
or
in the name of any Servicer, when the Master Servicer or a Servicer, as the
case
may be, believes it is appropriate in its best judgment to register any Mortgage
Loan with MERS, or cause the removal from the registration of any Mortgage
Loan
on the MERS system, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. The Master Servicer shall represent and protect the
interests of the Trust Fund in the same manner as it protects its own interests
in mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan and shall not make or knowingly permit any Servicer
to
make any modification, waiver or amendment of any term of any Mortgage Loan
that
would cause any REMIC formed hereby to fail to qualify as a REMIC or result
in
the imposition of any tax under Section 860F(a) or Section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Master Servicer in its
own
name or in the name of a Servicer, and the Servicer, to the extent such
authority is delegated to the Servicer by the Master Servicer under the
Servicing Agreement, is hereby authorized and empowered by the Trustee when
the
Master Servicer or applicable Servicer, as the case may be, believes it
appropriate in its best judgment and in accordance with Accepted Servicing
Practices and the Servicing Agreement, to execute and deliver, on behalf of
itself and the Certificateholders, the Trustee or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release
or
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall execute,
upon request, any powers of attorney furnished to it by the Master Servicer
empowering the Master Servicer or any Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property,
and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with the Servicing Agreement
and
this Agreement, and the Trustee shall execute and deliver such other documents,
as the Master Servicer may request, necessary or appropriate to enable the
Master Servicer to master service the Mortgage Loans and carry out its duties
hereunder, and allow the Servicer to service the Mortgage Loans in each case
in
accordance with Accepted Servicing Practices (and the Trustee shall have no
liability for misuse of any such powers of attorney by the Master Servicer
or
any Servicer). If the Master Servicer or the Trustee has been advised that
it is
likely that the laws of the state in which action is to be taken prohibit such
action if taken in the name of the Trustee or that the Trustee would be
adversely affected under the “doing business” or tax laws of such state if such
action is taken in its name, then upon request of the Trustee, the Master
Servicer shall join with the Trustee in the appointment of a co-trustee pursuant
to Section 6.09 hereof. In the performance of its duties hereunder, the Master
Servicer shall be an independent contractor and shall not, except in those
instances where it is taking action in the name of the Trustee, be deemed to
be
the agent of the Trustee.
135
(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall employ
procedures and exercise the same care that it customarily employs and exercises
in master servicing and administering loans for its own account, giving due
consideration to Accepted Servicing Practices where such practices do not
conflict with this Agreement. Consistent with the foregoing, the Master Servicer
may, and may permit any Servicer to, in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in connection with
the prepayment of a Mortgage Loan (except as set forth below) and (ii) extend
the due dates for payments due on a Mortgage Note for a period not greater
than
120 days; provided,
however,
that
the maturity of any Mortgage Loan shall not be extended past the date on which
the final payment is due on the latest maturing Mortgage Loan as of the Cut-off
Date. In the event of any extension described in clause (ii) above, the Master
Servicer shall make or cause to be made Advances on the related Mortgage Loan
in
accordance with the provisions of Section 5.04 on the basis of the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
extension. Notwithstanding
anything to the contrary in this Agreement, the Master Servicer shall not make
or knowingly permit any modification, waiver or amendment of any material term
of any Mortgage Loan unless: (1) such Mortgage Loan is in default or default
by
the related Mortgagor is, in the reasonable judgment of the Master Servicer
or
the applicable Servicer, reasonably foreseeable, (2) in the case of a waiver
of
a Prepayment Premium if (a) such Mortgage Loan is in default or default by
the
related Mortgagor is reasonably foreseeable, and such waiver would maximize
recovery of total proceeds taking into account the value of such Prepayment
Premium and the related Mortgage Loan or (b) if the prepayment is not the result
of a refinance by the Servicer or any of its affiliates and (i) such Mortgage
Loan is in default or default by the related Mortgagor is, in the reasonable
judgment of the Master Servicer or the applicable Servicer, reasonably
foreseeable, and such waiver would maximize recovery of total proceeds taking
into account the value of such Prepayment Premium and the related Mortgage
Loan
or (ii) the collection of the Prepayment Premium would be in violation of
applicable laws or (iii) the collection of such Prepayment Premium would be
considered "predatory" pursuant to written guidance published or issued by
any
applicable federal, state or local regulatory authority acting in its official
capacity and having jurisdiction over such matters, and (3) the Master Servicer
shall have provided or caused to be provided to the Trustee an Opinion of
Counsel(which opinion shall, if provided by the Master Servicer, be an expense
reimbursed from the Collection Account pursuant to Section 4.02(v)) in writing
to the effect that such modification, waiver or amendment would not cause an
Adverse REMIC Event; provided,
in no event shall an Opinion of Counsel be required for the waiver of a
Prepayment Premium under clause (2) above. Notwithstanding
anything to the contrary, the Master Servicer shall not without the Trustee’s
written consent: (i) initiate any action, suit or proceeding solely under the
Trustee’s name without indicating the Master Servicer’s representative capacity
or (ii) take any action with the intent to cause, and which actually does cause,
the Trustee to be registered to do business in any state.
136
Section 9.05. |
Servicing
Agreement Between the Master Servicer and the Servicer; Enforcement
of
Servicer’s Obligations.
|
(a) The
Servicing Agreement requires the applicable Servicer to service the Mortgage
Loans in accordance with the provisions thereof. References in this Agreement
to
actions taken or to be taken by the Master Servicer include such actions taken
or to be taken by the Servicer pursuant to the Servicing Agreement. Any fees,
costs and expenses and other amounts payable to the Servicer shall be deducted
from amounts remitted to the Master Servicer by the Servicer (to the extent
permitted by the Servicing Agreement) and shall not be an obligation of the
Trust Fund, the Trustee or the Master Servicer.
(b) The
Master Servicer shall not be required to (i) take any action with respect to
the
servicing of any Mortgage Loan that the Servicer is not required to take under
the Servicing Agreement and (ii) cause the Servicer to take any action or
refrain from taking any action if the Servicing Agreement does not
require
the Servicer to take such action or refrain from taking such action; in both
cases notwithstanding any provision of this Agreement that requires the Master
Servicer to take such action or cause the Servicer to take such
action.
137
(c) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of the Servicer under the Servicing Agreement,
and
shall use its reasonable best efforts to enforce the obligations of the Servicer
under the Servicing Agreement and shall, upon its obtaining actual knowledge
of
the failure of a Servicer to perform its obligations in accordance with the
Servicing Agreement, to the extent that the non-performance of any such
obligations would have a material adverse effect on a Mortgage Loan, the Trust
Fund or Certificateholders terminate the rights and obligations of the Servicer
thereunder to the extent and in the manner permitted by the Servicing Agreement
and either act as servicer of the related Mortgage Loans or enter into a
Servicing Agreement with a successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of the
Servicing Agreement and the pursuit of other appropriate remedies, shall be
in
such form and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own expense, and shall be reimbursed therefor initially
only
(i) from a general recovery resulting from such enforcement only to the extent,
if any, that such recovery exceeds all amounts due in respect of the related
Mortgage Loans or (ii) from a specific recovery of costs, expenses or attorneys’
fees against the party against whom such enforcement is directed, and then,
to
the extent that such amounts are insufficient to reimburse the Master Servicer
for the costs of such enforcement, (iii) from the Collection
Account.
(d) The
Master Servicer shall be entitled to rely conclusively on any certifications
or
other information provided by the Servicer under the terms of the Servicing
Agreement in its preparation of any certifications, filings or reports to be
made in accordance with the terms hereof or as may be required by applicable
law
or regulation.
Section 9.06. |
Collection
of Taxes, Assessments and Similar Items.
|
(a) To
the
extent provided in the Servicing Agreement, the Master Servicer shall cause
the
Servicer to establish and maintain one or more custodial accounts at a
depository institution (which may be a depository institution with which the
Master Servicer or the Servicer establishes accounts in the ordinary course
of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an “Escrow Account”) and shall deposit
therein any collections of amounts received with respect to amounts due for
taxes, assessments, water rates, Standard Hazard Insurance Policy premiums
or
any comparable items for the account of the Mortgagors. Withdrawals from any
Escrow Account may be made (to the extent amounts have been escrowed for such
purpose) only in accordance with the Servicing Agreement. The Servicer shall
be
entitled to all investment income not required to be paid to Mortgagors on
any
Escrow Account maintained by the Servicer. The Master Servicer shall make (or
cause to be made) to the extent provided in the Servicing Agreement advances
to
the extent necessary in order to effect timely payment of taxes, water rates,
assessments, Standard Hazard Insurance Policy premiums or comparable items
in
connection with the related Mortgage Loan (to the extent that the Mortgagor
is
required, but fails, to pay such items), provided
that it
has determined that the funds so advanced are recoverable from escrow payments,
reimbursement pursuant to Section 4.02(v) or otherwise.
138
(b) Costs
incurred by the Master Servicer or by the Servicer in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage
Loans
may be added to the amount owing under the related Mortgage Note where the
terms
of the Mortgage Note so permit; provided,
however,
that
the addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders. Such costs,
to
the extent that they are unanticipated, extraordinary costs, and not ordinary
or
routine costs shall be recoverable by the Master Servicer pursuant to Section
4.02(v).
Section 9.07. |
Termination
of Servicing Agreement; Successor Servicers.
|
(a) The
Master Servicer shall be entitled to terminate the rights and obligations of
any
Servicer under the Servicing Agreement in accordance with the terms and
conditions of such Servicing Agreement and without any limitation by virtue
of
this Agreement; provided,
however,
that in
the event of termination of any Servicing Agreement by the Master Servicer
or
the Servicer, the Master Servicer shall either act as Servicer of the related
Mortgage Loans, or enter into a Servicing Agreement with a successor Servicer.
(b) If
the
Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the Servicer, if any, that it replaces. The
Master Servicer shall use reasonable efforts to have the successor Servicer
assume liability for the representations and warranties made by the terminated
Servicer in respect of the related Mortgage Loans, and in the event of any
such
assumption by the successor Servicer, the Trustee or the Master Servicer, as
applicable, may, in the exercise of its business judgment, release the
terminated Servicer from liability for such representations and
warranties.
Section 9.08. |
Master
Servicer Liable for Enforcement.
|
Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee and the Certificateholders in accordance with the provisions
of
this Agreement, to the extent of its obligations hereunder, without diminution
of such obligation or liability by virtue of the Servicing Agreement or
arrangements. The Master Servicer shall use commercially reasonable efforts
to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of
this Agreement and shall use commercially reasonable efforts to enforce the
provisions of the Servicing Agreement for the benefit of the Certificateholders.
The Master Servicer shall be entitled to enter into any agreement with the
Servicer for indemnification of the Master Servicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification. Except
as expressly set forth herein, the Master Servicer shall have no liability
for
the acts or omissions of the Servicer in the performance by the Servicer of
its
obligations under the Servicing Agreement.
139
Section 9.09. |
No
Contractual Relationship Between the Servicer and Trustee or
Depositor.
|
The
Servicing Agreement that may be entered into and any other transactions or
services relating to the Mortgage Loans involving the Servicer in its capacity
as such and not as an originator shall be deemed to be between the Servicer,
the
Mortgage Loan Seller and the Master Servicer, and except to the extent expressly
provided therein the Trustee and the Depositor shall not be deemed parties
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the Servicer except as set forth in Section 9.10
hereof.
Section 9.10. |
Assumption
of Servicing Agreement by Trustee.
|
(a) In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Event of Default under this Agreement), after a
period not to exceed ninety days after the issuance of any notice of termination
pursuant to Section 6.14 or Section 9.28, as applicable, the Trustee shall,
in
accordance with Section 6.14, thereupon assume all of the rights and obligations
of such Master Servicer hereunder and enforce the rights under the Servicing
Agreement entered into with respect to the Mortgage Loans. The Trustee, its
designee or any successor master servicer appointed by the Trustee shall be
deemed to have assumed all of the Master Servicer’s interest herein and therein
to the same extent as if such Servicing Agreement had been assigned to the
assuming party, except that the Master Servicer shall not thereby be relieved
of
any liability or obligations of the Master Servicer under such Servicing
Agreement accruing prior to its replacement as Master Servicer, and shall be
liable to the Trustee, and hereby agrees to indemnify and hold harmless the
Trustee from and against all costs, damages, expenses and liabilities (including
reasonable attorneys’ fees) incurred by the Trustee as a result of such
liability or obligations of the Master Servicer and in connection with the
Trustee’s assumption (but not its performance, except to the extent that costs
or liability of the Trustee are created or increased as a result of negligent
or
wrongful acts or omissions of the Master Servicer prior to its replacement
as
Master Servicer) of the Master Servicer’s obligations, duties or
responsibilities thereunder; provided
that the
Master Servicer shall not indemnify or hold harmless the Trustee against
negligent or willful misconduct of the Trustee.
(b) The
Master Servicer that has been terminated shall, upon request of the Trustee
but
at the expense of such Master Servicer or, at the expense of the Trust Fund
to
the extent provided in this Agreement, deliver to the assuming party all
documents and records relating to the Servicing Agreement and the related
Mortgage Loans and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer
of
the Servicing Agreement to the assuming party.
140
Section 9.11. |
“Due-on-Sale”
Clauses; Assumption Agreements.
|
(a) To
the
extent provided in the Servicing Agreement, to the extent Mortgage Loans contain
enforceable due-on-sale clauses, and to the extent that the Master Servicer
has
knowledge of the conveyance of a Mortgaged Property, the Master Servicer shall
use its reasonable best efforts to cause the Servicer to enforce such clauses
in
accordance with the Servicing Agreement. If applicable law prohibits the
enforcement of a due-on-sale clause or such clause is otherwise not enforced
in
accordance with the Servicing Agreement, and, as a consequence, a Mortgage
Loan
is assumed, the original Mortgagor may be released from liability in accordance
with the Servicing Agreement.
(b) The
Master Servicer or the Servicer, as the case may be, shall be entitled to
approve a request from a Mortgagor for the granting of an easement thereon
in
favor of another Person or any alteration or demolition of the related Mortgaged
Property if it has determined, exercising its good faith business judgment
in
the same manner as it would if it were the owner of the related Mortgage Loan,
that the security for, and the timely and full collectibility of, such Mortgage
Loan would not be materially adversely affected thereby. Any fee collected
by
the Master Servicer or the Servicer for processing such a request will be
retained by the Master Servicer or the Servicer as additional servicing
compensation.
Section 9.12. |
Release
of Mortgage Files.
|
(a) Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or, (ii) the receipt
by the applicable Servicer of a notification that payment in full has been
or
will be escrowed in a manner customary for such purposes, the Master Servicer
will, or will cause the applicable Servicer to, promptly notify the Trustee
(or
the applicable Custodian) by a certification (which certification shall include
a statement to the effect that all amounts received or to be received in
connection with such payment that are required to be deposited in the Collection
Account maintained by the Master Servicer pursuant to Section 4.01 have been
or
will be so deposited) of a Servicing Officer and shall request the Trustee
or
the applicable Custodian, to deliver to the applicable Servicer the related
Mortgage File. In lieu of sending a hard copy certification of a Servicing
Officer, the Master Servicer may, or may cause the Servicer to, deliver the
request for release in a mutually agreeable electronic format. To the extent
that such a request, on its face, originates from a Servicing Officer, no
signature shall be required. Upon receipt of such certification and request,
the
Trustee or the applicable Custodian, shall promptly release the related Mortgage
File to the applicable Servicer and neither the Trustee nor the applicable
Custodian shall have any further responsibility with regard to such Mortgage
File. The Master Servicer is authorized, and the Servicer, to the extent such
authority is delegated to the Servicer by the Master Servicer under the
Servicing Agreement, is authorized, to give, as agent for the Trustee, as the
mortgagee under the Mortgage that secured the Mortgage Loan, an instrument
of
satisfaction (or assignment of mortgage without recourse) regarding the
Mortgaged Property subject to the Mortgage, which instrument of satisfaction
or
assignment, as the case may be, shall be delivered to the Person or Persons
entitled thereto against receipt therefor of such payment, it being understood
and agreed that no expenses incurred in connection with such instrument of
satisfaction or assignment, as the case may be, shall be chargeable to the
Collection Account.
141
(b) From
time
to time and as appropriate for the servicing or foreclosure of, or other legal
proceedings relating to, any Mortgage Loan and in accordance with Accepted
Servicing Practices and the Servicing Agreement, the Trustee shall execute
such
pleadings, request for trustee’s sale or other documents as shall be prepared
and furnished to the Trustee by the Master Servicer, or by a Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution
of
any such proceedings. The Trustee or the applicable Custodian, shall, upon
request of the Master Servicer, or of a Servicer, and delivery to the Trustee
or
the applicable Custodian, of a trust receipt signed by a Servicing Officer
substantially in the form annexed hereto as Exhibit C or in the form annexed
to
the applicable Custodial Agreement as Exhibit C, release the related Mortgage
File held in its possession or control to the Master Servicer (or the applicable
Servicer). Such trust receipt shall obligate the Master Servicer or applicable
Servicer to return the Mortgage File to the Trustee or applicable Custodian,
as
applicable, when the need therefor by the Master Servicer or applicable Servicer
no longer exists unless (i) the Mortgage Loan shall be liquidated, in which
case, upon receipt of a certificate of a Servicing Officer similar to that
herein above specified, the trust receipt shall be released by the Trustee
or
the applicable Custodian, as applicable, to the Master Servicer (or the
applicable Servicer) or (ii) the Mortgage File has been delivered directly
or
through a Servicer to an attorney, or to a public trustee or other public
official as required by law, for purposes of initiating or pursuing legal action
or other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and the Master Servicer has delivered directly
or
through a Servicer to the Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage
File
or such document was delivered and the purpose or purposes of such
delivery.
Section 9.13. |
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
|
(a) The
Master Servicer shall transmit, or cause the applicable Servicer to transmit,
to
the Trustee such documents and instruments coming into the possession of the
Master Servicer or the Servicer from time to time as are required by the terms
hereof to be delivered to the Trustee. Any funds received by the Master Servicer
or by a Servicer in respect of any Mortgage Loan or which otherwise are
collected by the Master Servicer or by a Servicer as a Subsequent Recovery,
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan
shall
be held for the benefit of the Trustee and the Certificateholders subject to
the
Master Servicer’s right to retain or withdraw from the Collection Account the
Master Servicing Fee and other amounts provided in this Agreement, and to the
right of the Servicer to retain its Servicing Fee and other amounts as provided
in the Servicing Agreement. The Master Servicer shall, and shall (to the extent
provided in the Servicing Agreement) cause the Servicer to, provide access
to
information and documentation regarding the Mortgage Loans to the Trustee,
its
agents and accountants at any time upon reasonable request and during normal
business hours, and to Certificateholders that are savings and loan
associations, banks or insurance companies, the Office of Thrift Supervision,
the FDIC and the supervisory agents and examiners of such Office and Corporation
or examiners of any other federal or state banking or insurance regulatory
authority if so required by applicable regulations of the Office of Thrift
Supervision or other regulatory authority, such access to be afforded without
charge but only upon reasonable request in writing and during normal business
hours at the offices of the Master Servicer designated by it. In fulfilling
such
a request the Master Servicer shall not be responsible for determining the
sufficiency of such information.
142
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, or any Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from a Subsequent Recovery,
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master
Servicer, or by the Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property
of
the Trustee; provided,
however,
that
the Master Servicer and the Servicer shall be entitled to setoff against, and
deduct from, any such funds any amounts that are properly due and payable to
the
Master Servicer or the Servicer under this Agreement or the Servicing Agreement
and shall be authorized to remit such funds to the Trustee in accordance with
this Agreement.
(c) The
Master Servicer hereby acknowledges that concurrently with the execution of
this
Agreement, the Trustee shall own or, to the extent that a court of competent
jurisdiction shall deem the conveyance of the Mortgage Loans from the Mortgage
Loan Seller to the Depositor not to constitute a sale, the Trustee shall have
a
security interest in either Mortgage Loans and in all Mortgage Files
representing such Mortgage Loans and in all funds now or hereafter held by,
or
under the control of, a Servicer or the Master Servicer that are collected
by
the Servicer or the Master Servicer in connection with such Mortgage Loans,
whether as scheduled installments of principal and interest or as full or
partial prepayments of principal or interest or as a Subsequent Recovery,
Liquidation Proceeds or Insurance Proceeds or otherwise, and in all proceeds
of
the foregoing and proceeds of proceeds (but excluding any fee or other amounts
to which the Servicer is entitled under the Servicing Agreement, or the Master
Servicer or the Depositor is entitled to hereunder); and the Master Servicer
agrees that so long as the Mortgage Loans are assigned to and held by the
Trustee, all documents or instruments constituting part of the Mortgage Files,
and such funds relating to the Mortgage Loans which come into the possession
or
custody of, or which are subject to the control of, the Master Servicer or
any
Servicer shall be held by the Master Servicer or the Servicer for and on behalf
of the Trustee as the Trustee’s agent and bailee for purposes of perfecting the
Trustee’s security interest therein as provided by the applicable Uniform
Commercial Code or other laws.
(d) The
Master Servicer agrees that it shall not, and shall not authorize any Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are deposited
in any custodial account, Escrow Account or the Collection Account, or any
funds
that otherwise are or may become due or payable to the Trustee, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
143
Section 9.14. |
Representations
and Warranties of the Master Servicer.
|
(a) The
Master Servicer hereby represents and warrants to the Depositor and the Trustee,
for the benefit of the Certificateholders, as of the Closing Date
that:
(i) it
is
validly existing and in good standing under the jurisdiction of its formation,
and as Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and comply
with
its obligations under the terms of this Agreement, the execution, delivery
and
performance of which have been duly authorized by all necessary corporate action
on the part of the Master Servicer;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A) violate
the Master Servicer’s charter or bylaws, (B) violate any law or regulation or
any administrative decree or order to which it is subject or (C) constitute
a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Master Servicer is a party or by
which it is bound or to which any of its assets are subject, which violation,
default or breach would materially and adversely affect the Master Servicer’s
ability to perform its obligations under this Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv) the
Master Servicer is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
144
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering into
this Agreement or performing its obligations under this Agreement;
(vii) the
Master Servicer, or an affiliate thereof the primary business of which is the
servicing of conventional residential mortgage loans, is an FNMA- and
FHLMC-approved seller/servicer;
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer; and
(x) the
Master Servicer has obtained an Errors and Omissions Insurance Policy and a
Fidelity Bond in accordance with Section 9.02, each of which is in full force
and effect, and each of which provides at least such coverage as is required
hereunder.
(b) It
is
understood and agreed that the representations and warranties set forth in
this
Section 9.14 shall survive the execution and delivery of this Agreement. The
Master Servicer shall indemnify the Depositor and the Trustee and hold them
harmless against any loss, damages, penalties, fines, forfeitures, legal fees
and related costs, judgments, and other costs and expenses resulting from any
claim, demand, defense or assertion based on or grounded upon, or resulting
from, a breach of the Master Servicer’s representations and warranties contained
in Section 9.14(a). Notwithstanding anything in this Agreement to the contrary,
the Master Servicer shall not be liable for special, indirect or consequential
losses or damages of any kind whatsoever (including, but not limited to, lost
profits). It is understood and agreed that the enforcement of the obligation
of
the Master Servicer set forth in this Section to indemnify the Depositor and
the
Trustee as provided in this Section constitutes the sole remedy (other than
as
set forth in Section 6.14) of the Depositor and the Trustee, respecting a breach
of the foregoing representations and warranties. Such indemnification shall
survive any termination of the Master Servicer as Master Servicer hereunder,
and
any termination of this Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by either the Depositor, the Master Servicer or the
Trustee or notice thereof by any one of such parties to the other
parties.
(c) It
is
understood and agreed that the representations and warranties of the Depositor
set forth in Sections 2.03(a) through (f) shall survive the execution and
delivery of this Agreement. The Depositor shall indemnify the Master Servicer
and hold it harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Depositor’s representations and warranties
contained in Sections 2.03(a) through (f) hereof. It is understood and agreed
that the enforcement of the obligation of the Depositor set forth in this
Section to indemnify the Master Servicer as provided in this Section constitutes
the sole remedy of the Master Servicer respecting a breach by the Depositor
of
the representations and warranties in Sections 2.03(a) through (f)
hereof.
145
Any
cause
of action against the Depositor relating to or arising out of the breach of
the
representations and warranties made in Sections 2.03(a) through (f) hereof
shall
accrue upon discovery of such breach by either the Depositor or the Master
Servicer or notice thereof by any one of such parties to the other
parties.
Section 9.15. |
Closing
Certificate and Opinion.
|
On
or
before the Closing Date, the Master Servicer shall cause to be delivered to
the
Depositor, the Trustee and Xxxxxx Brothers Inc. an Opinion of Counsel, dated
the
Closing Date, in form and substance reasonably satisfactory to the Depositor
and
Xxxxxx Brothers Inc., as to the due authorization, execution and delivery of
this Agreement by the Master Servicer and the enforceability thereof.
Section 9.16. |
Standard
Hazard and Flood Insurance Policies.
|
For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
maintain, or cause to be maintained by the Servicer, standard fire and casualty
insurance and, where applicable, flood insurance, all in accordance with the
provisions of this Agreement and the Servicing Agreement, as applicable. It
is
understood and agreed that such insurance shall be with insurers meeting the
eligibility requirements set forth in the Servicing Agreement and that no
earthquake or other additional insurance is to be required of any Mortgagor
or
to be maintained on property acquired in respect of a defaulted loan, other
than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance.
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by any
Servicer, under any insurance policies maintained pursuant to this Section
9.16
(other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the Mortgagor in accordance
with
the Master Servicer’s or the Servicer’s normal servicing procedures and Accepted
Servicing Practices) shall be deposited into the Collection Account, subject
to
withdrawal pursuant to Section 4.02. Any cost incurred by the Master Servicer
or
any Servicer in maintaining any such insurance if the Mortgagor defaults in
its
obligation to do so shall be added to the amount owing under the Mortgage Loan
where the terms of the Mortgage Loan so permit; provided,
however,
that
the addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders and shall be
recoverable by the Master Servicer or the Servicer pursuant to Section
4.02(v).
146
Section 9.17. |
Presentment
of Claims and Collection of Proceeds.
|
The
Master Servicer shall, or shall cause the Servicer (to the extent provided
in
the Servicing Agreement) to, prepare and present on behalf of the Trustee and
the Certificateholders all claims under the Insurance Policies with respect
to
the Mortgage Loans, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured’s claim) as shall be
necessary to realize recovery under such policies. Any proceeds disbursed to
the
Master Servicer (or disbursed to the Servicer and remitted to the Master
Servicer) in respect of such policies or bonds shall be promptly deposited
in
the Collection Account upon receipt, except that any amounts realized that
are
to be applied to the repair or restoration of the related Mortgaged Property
or
released to the Mortgagor in accordance with the Master Servicer’s or the
Servicer’s normal servicing procedures need not be so deposited (or
remitted).
Section 9.18. |
Maintenance
of the Primary Mortgage Insurance Policies.
|
(a) The
Master Servicer shall not take, or knowingly permit any Servicer (consistent
with the Servicing Agreement) to take, any action that would result in
non-coverage under any applicable Primary Mortgage Insurance Policy of any
loss
which, but for the actions of such Master Servicer or Servicer, would have
been
covered thereunder. To the extent that coverage is available, the Master
Servicer shall use its best reasonable efforts to keep in force and effect,
or
to cause the Servicer to keep in force and effect (to the extent that the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance with the
provisions of this Agreement and the Servicing Agreement, as applicable. The
Master Servicer shall not, and shall not permit any Servicer to, cancel or
refuse to renew any such Primary Mortgage Insurance Policy that is in effect
at
the date of the initial issuance of the Certificates and is required to be
kept
in force hereunder except as required by applicable law or in accordance with
the provisions of this Agreement and the Servicing Agreement, as
applicable.
(b) The
Master Servicer agrees to present, or to cause the Servicer to present, on
behalf of the Trustee and the Certificateholders, claims to the insurer under
any Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Section 4.01, any amounts collected by the Master Servicer or any Servicer
under
any Primary Mortgage Insurance Policies shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 4.02.
Section 9.19. |
Trustee
To Retain Possession of Certain Insurance Policies and
Documents.
|
The
Trustee (or any Custodian, as directed by the Trustee), shall retain possession
and custody of the originals of the Primary Mortgage Insurance Policies or
certificate of insurance if applicable and any certificates of renewal as to
the
foregoing as may be issued from time to time as contemplated by this Agreement.
Until all amounts distributable in respect of the Certificates have been
distributed in full and the Master Servicer otherwise has fulfilled its
obligations under this Agreement, the Trustee (or any Custodian, as directed
by
the Trustee) shall also retain possession and custody of each Mortgage File
in
accordance with and subject to the terms and conditions of this Agreement.
The
Master Servicer shall promptly deliver or cause to be delivered to the Trustee
(or any Custodian, as directed by the Trustee), upon the execution or receipt
thereof the originals of the Primary Mortgage Insurance Policies and any
certificates of renewal thereof, and such other documents or instruments that
constitute portions of the Mortgage File that come into the possession of the
Master Servicer from time to time.
147
Section 9.20. |
Realization
Upon Defaulted Mortgage Loans.
|
The
Master Servicer shall use its reasonable best efforts to, or to cause the
Servicer to, foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments, all in accordance with the Servicing
Agreement. Alternatively, the Master Servicer may take, or authorize any
Servicer to take, other actions in respect of a defaulted Mortgage Loan, which
may include (i) accepting a short sale (a payoff of the Mortgage Loan for an
amount less than the total amount contractually owed in order to facilitate
a
sale of the Mortgaged Property by the Mortgagor) or permitting a short
refinancing (a payoff of the Mortgage Loan for an amount less than the total
amount contractually owed in order to facilitate refinancing transactions by
the
Mortgagor not involving a sale of the Mortgaged Property), (ii) arranging for
a
repayment plan or (iii) agreeing to a modification in accordance with Section
9.04. In connection with such foreclosure or other conversion or action, the
Master Servicer shall, consistent with Section 9.18, follow such practices
and
procedures as it shall reasonably determine to be in the best interests of
the
Trust Fund and the Certificateholders and which shall be consistent with its
customary practices in performing its general mortgage servicing activities;
provided that the Master Servicer shall not be liable in any respect hereunder
if the Master Servicer is acting in connection with any such foreclosure or
other conversion or action in a manner that is consistent with the provisions
of
this Agreement. Neither the Master Servicer, nor any Servicer, shall be required
to expend its own funds or incur other reimbursable charges in connection with
any foreclosure, or attempted foreclosure which is not completed, or toward
the
correction of any default on a related senior mortgage loan, or towards the
restoration of any property unless it shall determine (i) that such restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage
Loan to the Certificateholders after reimbursement to itself for such expenses
or charges and (ii) that such expenses and charges will be recoverable to it
through Liquidation Proceeds or Insurance Proceeds (as provided in Section
4.02).
Section 9.21. |
Compensation
to the Master Servicer.
|
The
Master Servicer shall be entitled to withdraw from the Collection Account,
subject to Section 5.05, the Master Servicing Fee to the extent permitted by
Section 4.02(vi). Servicing compensation in the form of assumption fees, if
any,
late payment charges, as collected, if any, or otherwise (not including any
Prepayment Penalty Amounts with respect to those Mortgage Loans for which the
Mortgage Loan Seller own the servicing rights) shall be retained by the Master
Servicer (or the applicable Servicer) and shall not be deposited in the
Collection Account. If the Master Servicer does not retain or withdraw the
Master Servicing Fee from the Collection Account as provided herein, the Master
Servicer shall be entitled to direct the Trustee to pay the Master Servicing
Fee
to such Master Servicer by withdrawal from the Certificate Account. The Master
Servicer shall be required to pay all expenses incurred by it in connection
with
its activities hereunder and shall not be entitled to reimbursement therefor
except as provided in this Agreement. Pursuant to Section 4.01(e), all income
and gain realized from any investment of funds in the Collection Account shall
be for the benefit of the Master Servicer as additional compensation. The
provisions of this Section 9.21 are subject to the provisions of Section
6.14(b).
148
Section 9.22. |
REO
Property.
|
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall use its reasonable best efforts to sell, or, to the extent provided in
the
Servicing Agreement, cause the applicable Servicer to sell, any REO Property
as
expeditiously as possible and in accordance with the provisions of this
Agreement and the Servicing Agreement, as applicable, but in all events within
the time period, and subject to the conditions set forth in Article X hereof.
Pursuant to its efforts to sell such REO Property, the Master Servicer shall
protect and conserve, or cause the applicable Servicer to protect and conserve,
such REO Property in the manner and to such extent required by the Servicing
Agreement, subject to Article X hereof.
(b) The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from any Servicer, in connection with the operation
of any REO Property in the Collection Account.
(c) The
Master Servicer and the applicable Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Advances as well as any unpaid Master Servicing Fees or Servicing Fees from
Liquidation Proceeds received in connection with the final disposition of such
REO Property; provided,
that
(without limitation of any other right of reimbursement that the Master Servicer
or any Servicer shall have hereunder) any such unreimbursed Advances as well
as
any unpaid Master Servicing Fees or Servicing Fees may be reimbursed or paid,
as
the case may be, prior to final disposition, out of any net rental income or
other net amounts derived from such REO Property.
(d) The
Liquidation Proceeds from the final disposition of the REO Property, net of
any
payment to the Master Servicer and the applicable Servicer as provided above,
shall be deposited in the Collection Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer
in
immediately available funds to the Trustee for deposit into the Certificate
Account on the next succeeding Deposit Date.
149
Section 9.23. |
[Reserved]
|
Section 9.24. |
Reports
to the Trustee.
|
(a) Not
later
than 30 days after each Distribution Date, the Master Servicer shall forward
to
the Trustee a statement, deemed to have been certified by a Servicing Officer,
setting forth the status of the Collection Account maintained by the Master
Servicer as of the close of business on the related Distribution Date,
indicating that all distributions required by this Agreement to be made by
the
Master Servicer have been made (or if any required distribution has not been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from the Collection Account maintained by the Master
Servicer. Copies of such statement shall be provided by the Master Servicer
to
the Depositor, Attention: Contract Finance, and, upon request, any
Certificateholders (or by the Trustee at the Master Servicer’s expense if the
Master Servicer shall fail to provide such copies (unless (i) the Master
Servicer shall have failed to provide the Trustee with such statement or (ii)
the Trustee shall be unaware of the Master Servicer’s failure to provide such
statement)).
(b) Not
later
than two Business Days following each Distribution Date, the Master Servicer
shall deliver to the Person designated by the Depositor, in a format consistent
with other electronic loan level reporting supplied by the Master Servicer
in
connection with similar transactions, “loan level” information with respect to
the Mortgage Loans as of the related Determination Date (including information
on any Net Prepayment Interest Shortfalls), to the extent that such information
has been provided to the Master Servicer by the Servicer or by the
Depositor.
(c) All
information, reports and statements prepared by the Master Servicer under this
Agreement shall be based on information supplied to the Master Servicer by
the
Servicer without independent verification thereof and the Master Servicer shall
be entitled to rely on such information.
Section 9.25. |
Assessment
of Compliance and Attestation Reports.
|
(a) Assessment
of Compliance
(i) By
March
15 of each year, commencing in March 2007, the Master Servicer, at its own
expense, shall furnish, and shall cause any Servicing Function Participant
engaged by it to furnish, at its own expense, to the Sponsor, the Depositor,
the
Master Servicer and the Trustee, a report on an assessment of compliance with
the Relevant Servicing Criteria that contains (A) a statement by such party
of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (B) a statement that such party used the Servicing Criteria to assess
compliance with the Relevant Servicing Criteria, (C) such party’s assessment of
compliance with the Relevant Servicing Criteria as of and for the fiscal year
covered by the Form 10-K required to be filed pursuant to Section 6.20(e),
including, if there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof, and (D) a statement that a registered public accounting
firm
has issued an attestation report on such party’s assessment of compliance with
the Relevant Servicing Criteria as of and for such period.
150
(ii) When
the
Master Servicer (or any Servicing Function Participant engaged by it) submit
their assessments to the Trustee, such parties will also at such time include
the assessment (and attestation pursuant to subsection (b) of this Section
9.25)
of each Servicing Function Participant engaged by it and shall indicate to
the Depositor what Relevant Servicing Criteria will be addressed in any
such reports prepared by any such Servicing Function Participant.
(iii) Promptly
after receipt of each report on assessment of compliance, the Exchange Act
Signing Party shall confirm that the assessments, taken as a whole, address
all
of the Servicing Criteria and taken individually address the Relevant Servicing
Criteria for each party as set forth on Exhibit O and on any similar exhibit
set
forth in each Servicing Agreement in respect of each Servicer, and each
Custodial Agreement in respect of each Custodian, and shall notify the Depositor
of any exceptions.
(iv) On
or
prior to the Closing Date, the Master Servicer shall deliver to the Sponsor,
the
Trustee and the Depositor a certification in the form of Exhibit R attached
hereto regarding the items it will address in its assessment of compliance
with
the servicing criteria under this Section 9.25(a).
(b) Attestation
Reports
By
March
15 of each year, commencing in March 2007, the Master Servicer, at its own
expense, shall cause, and shall cause any Servicing Function Participant engaged
by it to cause, at its own expense, a registered public accounting firm (which
may also render other services to the Master Servicer) that is a member of
the
American Institute of Certified Public Accountants to furnish a report to the
Sponsor, the Depositor, the Master Servicer and the Trustee, to the effect
that
(A) it has obtained a representation regarding certain matters from the
management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (B) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the 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.
(ii) Promptly
after receipt of such report from the Master Servicer or any Servicing Function
Participant engaged by such party, the Exchange Act Signing Party shall confirm
that each assessment submitted pursuant subsection (a) of this Section 9.25
is
coupled with an attestation meeting the requirements of this Section and notify
the Depositor of any exceptions.
151
Section 9.26. |
Annual
Statement of Compliance with Applicable Servicing Criteria.
|
(a) The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor
and
the Trustee on or before March 15 of each year, commencing in March 2007, an
Officer’s Certificate stating, as to the signer thereof, that (A) a review of
such party’s activities during the preceding calendar year or portion thereof
and of such party’s performance under this Agreement, or such other applicable
agreement in the case of an Additional Servicer, has been made under such
officer’s supervision and (B) to the best of such officer’s knowledge, based on
such review, such party has fulfilled all its obligations under this Agreement,
or such other applicable agreement in the case of an Additional Servicer, in
all
material respects throughout such year or portion thereof, or, if there has
been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status thereof.
(b) Copies
of
such statements shall be provided to any Certificateholder upon request, by
the
Master Servicer or by the Trustee at the Master Servicer’s expense if the Master
Servicer failed to provide such copies (unless (i) the Master Servicer shall
have failed to provide the Trustee with such statement or (ii) the Trustee
shall
be unaware of the Master Servicer’s failure to provide such
statement).
(c) The
Master Servicer shall give prompt written notice to the Trustee, the Sponsor
and
the Depositor of the appointment of any Subcontractor by it and a written
description (in form and substance satisfactory to the Trustee, the Sponsor
and
the Depositor) of the role and function of each Subcontractor utilized by the
Master Servicer, specifying (A) the identity of each such Subcontractor and
(B)
which elements of the Servicing Criteria set forth under Item 1122(d) of
Regulation AB will be addressed in assessments of compliance provided by each
such Subcontractor.
(d) The
Master Servicer shall notify the Trustee, the Depositor and the Sponsor within
five (5) days of knowledge thereof (i) of any legal proceedings pending against
the Master Servicer of the type described in Item 1117 (§ 229.1117) of
Regulation AB, (ii) of any merger, consolidation or sale of substantially all
of
the assets of the Master Servicer and (iii) if the Master Servicer shall become
(but only to the extent not previously disclosed) at any time an affiliate
of
any of the parties listed on Exhibit S to this Agreement.
Section 9.27. |
Merger
or Consolidation.
|
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to
the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided,
however,
that
the successor or resulting Person to the Master Servicer shall be a Person
that
shall be qualified and approved to service mortgage loans for FNMA or FHLMC
and
shall have a net worth of not less than $15,000,000.
152
Section 9.28. |
Resignation
of Master Servicer.
|
Except
as
otherwise provided in Sections 9.27 and 9.29 hereof, the Master Servicer shall
not resign from the obligations and duties hereby imposed on it unless it
determines that the Master Servicer’s duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable law
with any other activities carried on by it and cannot be cured. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee. In the event such determination of ineligibility
of
the Master Servicer to continue in the capacity of master servicer is made
by
the Master Servicer or the Trustee, no such resignation shall become effective
until the Trustee shall have assumed, or a successor master servicer shall
have
been appointed by the Trustee and until such successor shall have assumed,
the
Master Servicer’s responsibilities and obligations under this Agreement. Notice
of such resignation shall be given promptly by the Master Servicer to the
Depositor.
Section 9.29. |
Assignment
or Delegation of Duties by the Master Servicer.
|
Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any Subservicer, Subcontractor
or any other Person to perform any of the duties, covenants or obligations
to be
performed by the Master Servicer hereunder; provided,
however,
that
the Master Servicer shall have the right without the prior written consent
of
the Trustee, the Depositor or the Rating Agencies to delegate or assign to
or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to
perform and carry out any duties, covenants or obligations to be performed
and
carried out by the Master Servicer hereunder. In no case, however, shall any
such delegation, subcontracting or assignment to an Affiliate of the Master
Servicer relieve the Master Servicer of any liability hereunder. Notice of
such
permitted assignment shall be given promptly by the Master Servicer to the
Depositor and the Trustee. If, pursuant to any provision hereof, the duties
of
the Master Servicer are transferred to a successor master servicer, the entire
amount of the Master Servicing Fees and other compensation payable to the Master
Servicer pursuant hereto, including amounts payable to or permitted to be
retained or withdrawn by the Master Servicer pursuant to Section 9.21 hereof,
shall thereafter be payable to such successor master servicer.
The
Master Servicer shall not permit a Subservicer to perform any master servicing
responsibilities hereunder with respect to the Mortgage Loans unless that
Subservicer first agrees in writing with such Master Servicer to deliver an
assessment of compliance and an accountant’s attestation in such manner and at
such times in compliance with Sections 9.25(a)(ii) and (b)(ii) of this
Agreement.
Section 9.30. |
Limitation
on Liability of the Master Servicer and Others.
|
(a) The
Master Servicer undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
153
(b) No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to act
or
its own willful misconduct; provided,
however,
that
the
duties
and obligations of the Master Servicer shall be determined solely by the express
provisions of this Agreement, the Master Servicer shall not be liable except
for
the performance of such duties and obligations as are specifically set forth
in
this Agreement; no implied covenants or obligations shall be read into this
Agreement against the Master Servicer and, in absence of bad faith on the part
of the Master Servicer, the Master Servicer may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Master Servicer and
conforming to the requirements of this Agreement.
(c) None
of the Master Servicer, the Mortgage Loan Seller or the Depositor or any of
the
directors, officers, employees or agents of any of them shall be under any
liability to the Trustee or the Certificateholders for any action taken or
for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided,
however,
that this provision shall not protect the Master Servicer, the Mortgage Loan
Seller or the Depositor or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of its duties or by reason of reckless disregard for its
obligations and duties under this Agreement. The Master Servicer, the Mortgage
Loan Seller and the Depositor and any director, officer, employee or agent
of
any of them shall be entitled to indemnification by the Trust Fund and will
be
held harmless against any loss, liability or expense incurred in connection
with
any legal action relating to this Agreement or the Certificates other than
any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of his or its duties hereunder or by reason
of
reckless disregard of his or its obligations and duties hereunder. The Master
Servicer, the Mortgage Loan Seller and the Depositor and any director, officer,
employee or agent of any of them may rely in good faith on any document of
any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Master Servicer shall be under no obligation
to
appear in, prosecute or defend any legal action that is not incidental to its
duties to master service the Mortgage Loans in accordance with this Agreement
and that in its opinion may involve it in any expenses or liability;
provided,
however,
that the Master Servicer may in its sole discretion undertake any such action
that it may deem necessary or desirable in respect to this Agreement and the
rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities of the Trust Fund and the Master Servicer shall be entitled to
be
reimbursed therefor out of the Collection Account it maintains as provided
by
Section 4.02.
Section 9.31. |
Indemnification;
Third-Party Claims.
|
The
Master Servicer agrees to indemnify the Depositor, the Sponsor and the Trustee,
and their respective officers, directors, agents and affiliates, and hold each
of them harmless against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liability, fees and expenses that the Depositor, the Sponsor or the
Trustee may sustain as a result of (a) any breach by the Master Servicer of
any
if its obligations hereunder, including particularly its obligations to provide
any reports under Section 9.25(a), Section 9.25(b) or Section 9.26 or any
information, data or materials required to be included in any Exchange Act
report, (b) any misstatement or omission in any information, data or materials
provided by the Master Servicer, or (c) the negligence, bad faith or willful
misconduct of the Master Servicer in connection with its performance hereunder.
The Depositor, the Sponsor and the Trustee shall immediately notify the Master
Servicer if a claim is made by a third party with respect to this Agreement
or
the Mortgage Loans entitling the Depositor, the Sponsor or the Trustee to
indemnification hereunder, whereupon the Master Servicer shall assume the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or them in respect of such
claim.
154
Section 9.32. |
Special
Servicing of Delinquent Mortgage Loans.
|
If
permitted under the terms of the Servicing Agreement, the Mortgage Loan Seller
may appoint, pursuant to the terms of the Servicing Agreement and with the
written consent of the Depositor, the Master Servicer and the Trustee, a special
servicer (the “Special Servicer”) to special service any Distressed Mortgage
Loans. Any applicable termination fee related to the termination of the Servicer
and the appointment of any Special Servicer shall be paid by the Mortgage Loan
Seller from its own funds, without right of reimbursement from the Trust Fund.
Any fees paid to any such Special Servicer shall not exceed the related
Servicing Fee Rate.
ARTICLE
X
REMIC
ADMINISTRATION
Section 10.01. |
REMIC
Administration.
|
(a) As
set
forth in the Preliminary Statement hereto, the Trustee shall elect REMIC status
in accordance with the REMIC Provisions with respect to each of the REMICs.
The
Trustee shall make such elections 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. For the purposes of such
elections, each of the Interests in REMIC I, other than the Class R-1 Interest,
is hereby designated as a regular interest in REMIC I; each of the Interests
in
REMIC II, other than the Class R-2 Interest, is hereby designated as a regular
interest in REMIC II; each of the Interests in REMIC X, other than the Class
R-X
Interest, is hereby designated as a regular interest in REMIC X; and each
Certificate, other than the Group 1-2 Subordinate Certificates, Class X, Class
LT-R, Class R and Class P Certificates and, in the case of the Class 1-A1 and
Class 3-A1 Certificates, exclusive of the right to receive amounts from the
related Basis Risk Reserve Fund, and each Component comprising each Group 1-2
Component Certificate is hereby designated as a regular interest in REMIC III.
In addition, the Class R-2 Interest is hereby designated as the sole residual
interest in REMIC II, the Class R-X Interest is hereby designated as the sole
residual interest in REMIC X and the Class R Certificate evidences ownership
of
the Class R-2 and Class R-X Interests and is also hereby designated as the
sole
residual interest in REMIC III.
155
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 86OG(a)(9) of the Code. The latest possible maturity date
for
purposes of Treasury Regulation 1.86OG-1(a)(4) will be the Latest Possible
Maturity Date.
(c) The
Trustee shall pay any and all tax related expenses (not including taxes) of
each
REMIC, including but not limited to any professional fees or expenses related
to
audits or any administrative or judicial proceedings with respect to such REMIC
that involve the Internal Revenue Service or state tax authorities, but only
to
the extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Trustee in
fulfilling its duties hereunder (including its duties as tax return preparer).
The Trustee shall be entitled to reimbursement of expenses to the extent
provided in clause (i) above from the Certificate Account, provided,
however,
the
Trustee shall not be entitled to reimbursement for expenses incurred in
connection with the preparation of tax returns and Form SS-4 as required by
Section 6.20 and this Section 10.01.
(d) The
Trustee shall prepare, sign and file all of each REMIC’s federal and applicable
state tax and information returns as such REMIC’s direct representative. As used
in the previous sentence, “applicable state tax and information returns” shall
mean such returns as may be required by the laws of any state, the applicability
of which to the Trust Fund shall have been confirmed to the Trustee in writing
either (i) by the delivery to the Trustee of an Opinion of Counsel to such
effect, or (ii) by delivery to the Trustee of a written notification to such
effect by the taxing authority of such state. The expenses of preparing and
filing such returns shall be borne by the Trustee. If any Disqualified
Organization acquires any Ownership Interest in a Residual Certificate, then
the
Trustee will upon request provide to the Internal Revenue Service, and to the
persons specified in Sections 860E(e)(3) and (6) of the Code, such information
as required in Section 860D(a)(6)(B) of the Code needed to compute the tax
imposed under Section 860E(e) of the Code on transfers of residual interests
to
disqualified organizations. The Trustee shall be entitled to additional
compensation from such person for the cost of providing such
information.
(e) The
Trustee shall perform on behalf of each REMIC all reporting and other tax
compliance duties that are the responsibility of such REMIC under the Code,
the
REMIC Provisions, or other compliance guidance issued by the Internal Revenue
Service or any state or local taxing authority. Among its other duties, if
required by the Code, the REMIC Provisions, or other such guidance, the Trustee
shall provide (i) to the Treasury or other governmental authority such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any disqualified person or organization
and (ii) to the Trustee such information as is necessary for the Trustee to
provide to the Certificateholders such information or reports as are required
by
the Code or the REMIC Provisions.
156
(f) The
Trustee, the Master Servicer and the Holders of Certificates shall take any
action within their respective control and the scope of their respective duties
or cause each REMIC to take any action necessary to create or maintain the
status of such REMIC as a REMIC under the REMIC Provisions and shall assist
each
other as necessary to create or maintain such status. None of the Trustee,
the
Master Servicer or the Holder of any Residual Certificate shall take any action
within its respective control, cause any REMIC to take any action or fail to
take (or fail to cause to be taken) any action within its control and in the
scope of its duties 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 Trustee and the Master
Servicer have received an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the contemplated action will
not
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 expressly permitted under
the
terms of this Agreement any Holder of a Residual Certificate will consult with
the Trustee and the Master Servicer, or their respective designees, in writing,
with respect to whether such action could cause an Adverse REMIC Event to occur
with respect to any REMIC, and no such Person shall take any such action or
cause any REMIC to take any such action as to which the Trustee or the Master
Servicer has advised it in writing that an Adverse REMIC Event could
occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
the related REMIC by federal or state governmental authorities. To the extent
it
has actual knowledge that such taxes were not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the Residual
Certificate in such REMIC or, if no such amounts are available, out of other
amounts held in the Collection Account, and shall reduce amounts otherwise
payable to holders of regular interests in such REMIC, as the case may
be.
(h) The
Trustee shall, for federal income tax purposes, maintain books and records
with
respect to each REMIC on a calendar year and on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement with respect to eligible substitute
mortgage loans.
(j) Neither
the Trustee nor the Master Servicer shall enter into any arrangement by which
any REMIC will receive a fee or other compensation for services.
(k) Upon
the
request of any Rating Agency, the Trustee shall deliver to such Rating Agency
an
Officer’s Certificate stating the Trustee’s compliance with the provisions of
this Section 10.01 applicable to it.
157
Section 10.02. |
Prohibited
Transactions and Activities.
|
None
of
the Depositor, the Master Servicer or the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC, nor sell or dispose of any investments in the Certificate
Account for gain, nor accept any contributions to any REMIC after the Closing
Date, unless it has received an Opinion of Counsel (at the expense of the party
causing such sale, disposition, or substitution) that such disposition,
acquisition, substitution, or acceptance will not (a) affect adversely the
status of such REMIC as a REMIC or of the Certificates other than the Residual
Certificate and Class P Certificates as the regular interests therein, (b)
affect the distribution of interest or principal on the Certificates, (c) result
in the encumbrance of the assets transferred or assigned to the Trust Fund
(except pursuant to the provisions of this Agreement) or (d) cause such REMIC
to
be subject to a tax on prohibited transactions or prohibited contributions
pursuant to the REMIC Provisions.
Section 10.03. |
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
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 Trustee of its duties and obligations set forth herein,
the
Trustee shall indemnify the Holder of the Residual Certificate against any
and
all losses, claims, damages, liabilities or expenses (“Losses”) resulting from
such negligence; provided,
however,
that
the Trustee shall not be liable for any such Losses attributable to the action
or inaction of the Master Servicer, the Depositor, or the Holder of such
Residual Certificate, as applicable, or for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which
the
Trustee has relied. The foregoing shall not be deemed to limit or restrict
the
rights and remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however, in no
event shall the Trustee have any liability (1) for any action or omission that
is taken in accordance with and in compliance with the express terms of, or
which is expressly permitted by the terms of, this Agreement, (2) for any Losses
other than arising out of a negligent performance by the Trustee its duties
and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders (in addition to payment of principal and interest on
the
Certificates) even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
Section 10.04. |
REO
Property.
|
(a) Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not (except to the extent provided in the Servicing
Agreement) permit any Servicer to, rent, lease, or otherwise earn income on
behalf of any REMIC with respect to any REO Property which might cause such
REO
Property to fail to qualify as “foreclosure” property within the meaning of
section 860G(a)(8) of the Code or result in the receipt by any REMIC of any
“income from non-permitted assets” within the meaning of section 860F(a)(2) of
the Code or any “net income from foreclosure property” which is subject to tax
under the REMIC Provisions unless the Master Servicer has advised, or has caused
the applicable Servicer to advise, the Trustee in writing to the effect that,
under the REMIC Provisions, such action would not adversely affect the status
of
any REMIC as a REMIC and any income generated for any REMIC by the REO Property
would not result in the imposition of a tax upon such REMIC.
158
(b) The
Master Servicer shall make, or shall cause the applicable Servicer to make,
reasonable efforts to sell any REO Property for its fair market value. In any
event, however, the Master Servicer shall, or shall cause the applicable
Servicer to, dispose of any REO Property within three years from the end of
the
calendar year of its acquisition by the Trust Fund unless the Trustee has
received a grant of extension from the Internal Revenue Service to the effect
that, under the REMIC Provisions and any relevant proposed legislation and
under
applicable state law, the REMIC may hold REO Property for a longer period
without adversely affecting the REMIC status of such REMIC or causing the
imposition of a Federal or state tax upon such REMIC. If the Trustee has
received such an extension, then (a) the Trustee shall provide a copy of such
extension to the Master Servicer and (b) the Trustee, or the Master Servicer,
acting on its behalf hereunder, shall, or shall cause the applicable Servicer
to, continue to attempt to sell the REO Property for its fair market value
for
such period longer than three years as such extension permits (the “Extended
Period”). If the Trustee has not received such an extension and the Trustee, or
the Master Servicer acting on behalf of the Trustee hereunder, or the applicable
Servicer is unable to sell the REO Property within 33 months after its
acquisition by the Trust Fund or if the Trustee has received such an extension,
and the Trustee, or the Master Servicer acting on behalf of the Trustee
hereunder, is unable to sell the REO Property within the period ending three
months before the close of the Extended Period, the Master Servicer shall,
or
shall cause the applicable Servicer to, before the end of the three year period
or the Extended Period, as applicable, (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 Master 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.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section 11.01. |
Binding
Nature of Agreement; Assignment.
|
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
159
Section 11.02. |
Entire
Agreement.
|
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 11.03. |
Amendment.
|
(a) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may be amended from
time to time by the Depositor, the Master Servicer and the Trustee, without
notice to or the consent of any of the Holders, (i) to cure any ambiguity,
(ii)
to cause the provisions herein to conform to or be consistent with or in
furtherance of the statements made with respect to the Certificates, the Trust
Fund or this Agreement in any Offering Document; or to correct or supplement
any
provision herein which may be inconsistent with any other provisions herein
or
with the provisions of any Servicing Agreement, (iii) to make any other
provisions with respect to matters or questions arising under this Agreement
or
(iv) to add, delete, or amend any provisions to the extent necessary or
desirable to comply with any requirements imposed by the Code and the REMIC
Provisions. No such amendment effected pursuant to the preceding sentence shall,
as evidenced by an Opinion of Counsel, adversely affect the status of any REMIC
created pursuant to this Agreement, nor shall such amendment effected pursuant
to clause (iii) of such sentence adversely affect in any material respect the
interests of any Holder. Prior to entering into any amendment without the
consent of Holders pursuant to this paragraph, the Trustee may require an
Opinion of Counsel (at the expense of the party requesting such amendment)
to
the effect that such amendment is permitted under this paragraph. Any such
amendment shall be deemed not to adversely affect in any material respect any
Holder if the Trustee receives written confirmation from each Rating Agency
that
such amendment will not cause such Rating Agency to reduce, qualify or withdraw
the then current rating assigned to the Certificates (and any Opinion of Counsel
requested by the Trustee in connection with any such amendment may rely
expressly on such confirmation as the basis therefor).
(b) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may also be amended
from time to time by the Depositor, the Master Servicer and the Trustee with
the
consent of the Holders of not less than 66 2/3% of the Class Principal Amount
(or Percentage Interest) of each Class of Certificates affected thereby for
the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Agreement or of modifying in any manner the rights
of
the Holders; provided,
however,
that no
such amendment shall be made unless the Trustee receives an Opinion of Counsel,
at the expense of the party requesting the change, that such change will not
adversely affect the status of any REMIC as a REMIC or cause a tax to be imposed
on any REMIC; and provided,
further,
that no
such amendment may (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed
on
any Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount (or Percentage
Interest) of Certificates of each Class, the Holders of which are required
to
consent to any such amendment without the consent of the Holders of 100% of
the
Class Principal Amount (or Class Notional Amount) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to “Holder” or
“Holders” shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
160
(c) After
a
Section 7.01(c) Purchase Event but on or prior to a Trust Fund Termination
Event, this Agreement may be amended from time to time by the Depositor, the
Master Servicer, the LTURI-holder and the Trustee. Prior to entering into any
amendment without the consent of Holders pursuant to this paragraph, the Trustee
shall be provided with an Opinion of Counsel addressed to the Trustee (at the
expense of the party requesting such amendment) to the effect that such
amendment is permitted under this Section and will not result in an Adverse
REMIC Event.
(d) Promptly
after the execution of any such amendment, the Trustee shall furnish written
notification of the substance of such amendment to each Holder, the Depositor
and to the Rating Agencies.
(e) It
shall
not be necessary for the consent of Holders under this Section 11.03 to approve
the particular form of any proposed amendment, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by Holders
shall be subject to such reasonable regulations as the Trustee may
prescribe.
(f) Notwithstanding
anything to the contrary in any Servicing Agreement, the Trustee shall not
consent to any amendment of any Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in Section 11.03(a) or Section
11.03(b) with respect to amendment of this Agreement and (ii) except for a
Permitted Servicing Amendment, any such amendment pursuant to Section
11.03(a)(iii) shall not be materially inconsistent with the provisions of such
Servicing Agreement as evidenced by an Officer’s Certificate of the
Depositor.
(g) Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor, the Master Servicer and the Trustee to
the
extent necessary, in the judgment of the Depositor and its counsel, to comply
with the Rules.
Section 11.04. |
Voting
Rights.
|
Except
to
the extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Principal Amount (or Notional Amount),
Certificates owned by the Depositor, the Master Servicer, the Trustee or any
Servicer or Affiliates thereof are not to be counted so long as such
Certificates are owned by the Depositor, the Master Servicer, the Trustee or
any
Servicer or Affiliates thereof.
161
Section 11.05. |
Provision
of Information.
|
(a) For
so
long as any of the Certificates of any Series or Class are “restricted
securities” within the meaning of Rule 144(a)(3) under the Securities Act, each
of the Depositor and the Trustee agree to cooperate with each other to provide
to any Certificateholders and to any prospective purchaser of Certificates
designated by such Certificateholder, upon the request of such Certificateholder
or prospective purchaser, any information required to be provided to such holder
or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Securities Act. Any reasonable, out-of-pocket expenses incurred by
the
Trustee in providing such information shall be reimbursed by the
Depositor.
(b) The
Trustee will make available to any person to whom a Prospectus was delivered,
upon the request of such person specifying the document or documents requested,
(i) a copy (excluding exhibits) of any report on Form 8-K, Form 10-D or Form
10-K filed with the Securities and Exchange Commission pursuant to Section
6.20(c) and (ii) a copy of any other document incorporated by reference in
the
Prospectus to the extent in the possession of the Trustee. Any reasonable
out-of-pocket expenses incurred by the Trustee in providing copies of such
documents shall be reimbursed by the Depositor.
(c) The
Trustee shall make available to the Depositor and, upon the written request
and
at the expense of a Holder of a Group 4 Certificate, will make available to
such
Certificateholder, copies of any notices, statements, reports or other
communications including, without limitation, the Underlying Distribution Date
Statements, received by the Trustee with respect to the Underlying Certificates.
The Trustee shall make available copies of all Underlying Distribution Date
Statements to the Rating Agencies promptly after its receipt of the
same.
(d) On
each
Distribution Date, the Trustee shall deliver or cause to be delivered by first
class mail or make available on its website to the Depositor, Attention:
Contract Finance, a copy of the report delivered to Certificateholders pursuant
to Section 4.03.
Section 11.06. |
Governing
Law.
|
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
162
Section 11.07. |
Notices.
|
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when delivered to such party at the relevant
address, facsimile number or electronic mail address set forth below (or at
such
other address, facsimile number or electronic mail address as such party may
designate from time to time by written notice in accordance with this Section
11.07): (a) in the case of the Depositor, Structured Asset Securities
Corporation, 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance Lehman Mortgage Trust
2006-1, (b) in the case of the Seller and the Sponsor, Xxxxxx Brothers Holdings
Inc., 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance LMT 2006-1, (c) in the
case of the Trustee, the Corporate Trust Office and (d) in the case of the
Master Servicer, Aurora Loan Services LLC, 000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000; Attention: Master Servicing Xxxxxx Mortgage Trust 2006-1, or
as
to each party such other address as may hereafter be furnished by such party
to
the other parties in writing. Any notice required or permitted to be mailed
to a
Holder shall be given by first class mail, postage prepaid, at the address
of
such Holder 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, whether or not the Holder 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 severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
Section 11.09. |
Indulgences;
No Waivers.
|
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted to
have
granted such waiver.
Section 11.10. |
Headings
Not To Affect Interpretation.
|
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section 11.11. |
Benefits
of Agreement.
|
Nothing
in this Agreement or in the Certificates, express or implied, shall give to
any
Person, other than the parties to this Agreement and their successors hereunder
and the Holders of the Certificates, any benefit or any legal or equitable
right, power, remedy or claim under this Agreement, except to the extent
specified in Sections 11.14 and 11.15.
163
Section 11.12. |
Special
Notices to the Rating Agencies.
|
(a) The
Depositor shall give prompt notice to the Rating Agencies of the occurrence
of
any of the following events of which it has notice:
(i) any
amendment to this Agreement pursuant to Section 11.03;
(ii) any
Assignment by the Master Servicer of its rights hereunder or delegation of
its
duties hereunder;
(iii) the
occurrence of any Event of Default described in Section 6.14;
(iv) any
notice of termination given to the Master Servicer pursuant to Section 6.14
and
any resignation of the Master Servicer hereunder;
(v) the
appointment of any successor to any Master Servicer pursuant to Section 6.14;
and
(vi) the
making of a final payment pursuant to Section 7.02.
(b) All
notices to the Rating Agencies provided for this Section shall be in writing
and
sent by first class mail, telecopy or overnight courier, as
follows:
If
to
S&P, to:
Standard
& Poor’s Ratings Services
00
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgage Surveillance
If
to
Moody’s, to:
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ABS Monitoring Department
(c) The
Trustee shall provide or make available to the Rating Agencies reports prepared
pursuant to Section 4.03. In addition, the Trustee shall, at the expense of
the
Trust Fund, make available to each Rating Agency such information as such Rating
Agency may reasonably request regarding the Certificates or the Trust Fund,
to
the extent that such information is reasonably available to the
Trustee.
Section 11.13. |
Counterparts.
|
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one and
the
same instrument.
164
Section 11.14. |
Transfer
of Servicing.
|
The
Mortgage Loan Seller agrees that it shall provide written notice to the Trustee
and the Master Servicer thirty days prior to any transfer or assignment by
such
Mortgage Loan Seller of its rights under any Servicing Agreement or of the
servicing thereunder or delegation of its rights or duties thereunder or any
portion thereof to any Person other than the initial Servicer under such
Servicing Agreement; provided,
that
(i) the Mortgage Loan Seller shall not be required to provide prior notice
of
any transfer of servicing that occurs within three months following the Closing
Date to an entity that is a Servicer on the Closing Date or (ii) Xxxxxx Holdings
shall be required to provide notice of any transfer of servicing rights by
either of them to the other. In addition, the ability of the Mortgage Loan
Seller to transfer or assign its rights and delegate its duties under any
Servicing Agreement (other than a transfer of servicing rights between Xxxxxx
Holdings and Xxxxxx Bank) or to transfer the servicing thereunder to a successor
servicer shall be subject to the following conditions:
(i) Such
successor servicer must be qualified to service loans for FNMA or
FHLMC;
(ii) Such
successor servicer must satisfy the seller/servicer eligibility standards in
the
Servicing Agreement, exclusive of any experience in mortgage loan origination,
and must be reasonably acceptable to the Master Servicer, whose approval shall
not be unreasonably withheld;
(iii) Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by the applicable Servicer under the
Servicing Agreement or, (i) in the case of a transfer of servicing to a party
that is already a Servicer pursuant to this Agreement, an agreement to add
the
related Mortgage Loans to the Servicing Agreement already in effect with the
Servicer and (ii) in the case of a transfer of servicing to a Special Servicer
pursuant to Section 9.32 herein, a special servicing agreement in the form
of
that attached to the Servicing Agreement;
(iv) If
the
successor servicer is not a Servicer of Mortgage Loans at the time of transfer,
there must be delivered to the Trustee a letter from each Rating Agency to
the
effect that such transfer of servicing will not result in a qualification,
withdrawal or downgrade of the then-current rating of any of the Certificates;
and
(v) The
Mortgage Loan Seller shall, at its cost and expense, take such steps, or cause
the terminated Servicer to take such steps, as may be necessary or appropriate
to effectuate and evidence the transfer of the servicing of the Mortgage Loans
to such successor servicer, including, but not limited to, the following: (A)
to
the extent required by the terms of the Mortgage Loans and by applicable federal
and state laws and regulations, the Mortgage Loan Seller shall cause the prior
Servicer to timely mail to each obligor under a Mortgage Loan any required
notices or disclosures describing the transfer of servicing of the Mortgage
Loans to the successor servicer; (B) prior to the effective date of such
transfer of servicing, the Mortgage Loan Seller shall cause the prior Servicer
to transmit to any related insurer notification of such transfer of servicing;
(C) on or prior to the effective date of such transfer of servicing, the
Mortgage Loan Seller shall cause the prior Servicer to deliver to the successor
servicer all Mortgage Loan Documents and any related records or materials;
(D)
on or prior to the effective date of such transfer of servicing, the Mortgage
Loan Seller shall cause the prior Servicer to transfer to the successor
servicer, or, if such transfer occurs after a Remittance Date but before the
next succeeding Deposit Date, to the Master Servicer, all funds held by the
applicable Servicer in respect of the Mortgage Loans; (E) on or prior to the
effective date of such transfer of servicing, the Mortgage Loan Seller shall
cause the prior Servicer to, after the effective date of the transfer of
servicing to the successor servicer, continue to forward to such successor
servicer, within one Business Day of receipt, the amount of any payments or
other recoveries received by the prior Servicer, and to notify the successor
servicer of the source and proper application of each such payment or recovery;
and (F) the Mortgage Loan Seller shall cause the prior Servicer to, after the
effective date of transfer of servicing to the successor servicer, continue
to
cooperate with the successor servicer to facilitate such transfer in such manner
and to such extent as the successor servicer may reasonably
request.
165
Section 11.15. |
Tax
Treatment of Class P and Class X Certificates.
|
It
is the
intent of the parties hereto that the segregated pool of assets consisting
of
any collections in respect of the Class P Distributable Amount payable to Class
P Certificates and the right to assets evidenced by the Class X Certificates
each constitute, for federal income tax purposes, a grantor trust as described
in Subpart E of Part I of Subchapter J of the Code and Treasury Regulation
§301.7701-4(c)(2). The Trustee shall prepare, sign and file all of the tax
returns in respect of each such grantor trust. The expenses of preparing and
filing such returns shall be borne by the Trustee without any right of
reimbursement therefor. The Trustee shall comply with each such requirement
by
filing Form 1041 or other applicable form.
Section 11.16. |
Conflicts.
|
To
the
extent that the terms of this Agreement conflict with the terms of the Servicing
Agreement, the Servicing Agreement shall govern, unless such provisions shall
adversely affect the Trustee or the Trust Fund.
166
.
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers hereunto duly authorized as of the day and year
first above written.
STRUCTURED
ASSET SECURITIES CORPORATION, as Depositor
By:
/s/ Xxxxx X. Kiernan_
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
CITIBANK,
N.A.,
as
Trustee
By:
/s/ Xxxxx Xxxxxxxx _
Name:
Title:
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
By:
/s/ Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Vice President
Solely
for purposes of Sections 6.11 and 11.14,
accepted
and agreed to by:
XXXXXX
BROTHERS HOLDINGS INC.
By:
/s/ Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title: Authorized Signatory
EXHIBIT
A
FORMS
OF
CERTIFICATES
X-0
XXXXXXX
X-0
FORM
OF INITIAL CERTIFICATION
________________
|
|
[Date]
|
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Agency and Trust - Lehman Mortgage Trust 2006-1
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Aurora
Loan Services LLC
000
Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
RE: |
Trust
Agreement dated as of January 1, 2006, (the “Trust Agreement”), among
Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services LLC, as Master Servicer, and Citibank, N.A., as Trustee,
with
respect to Xxxxxx
Mortgage
Trust
Mortgage Pass-Through Certificates, Series
2006-1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Trust Agreement, subject to review of
the
contents thereof, the undersigned, as Custodian on behalf of the Trustee, hereby
certifies that it has received the documents listed in Section 2.01(b) of the
Trust Agreement for each Mortgage File pertaining to each Mortgage Loan listed
on Schedule A, to the Trust Agreement, subject to any exceptions noted on
Schedule I hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have the
respective meanings assigned to them in the Trust Agreement. This Certificate
is
subject in all respects to the terms of Section 2.02 of the Trust Agreement
and
the Trust Agreement sections cross-referenced therein.
[Custodian], on behalf of | |
Citibank, N.A., | |
as Trustee | |
By: ________________________ | |
Name: | |
Title: |
X-0-0
XXXXXXX
X-0
FORM
OF INTERIM CERTIFICATION
________________
|
|
[Date]
|
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Agency and Trust - Lehman Mortgage Trust 2006-1
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Aurora
Loan Services LLC
000
Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
RE: |
Trust
Agreement dated as of January 1, 2006, (the “Trust Agreement”), among
Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services LLC, as Master Servicer, and Citibank, N.A., as Trustee,
with
respect to Xxxxxx
Mortgage
Trust
Mortgage Pass-Through Certificates, Series
2006-1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Trust Agreement, the undersigned, as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on the attachment hereto) it (or its custodian) has received
the
applicable documents listed in Section 2.01(b) of the Trust
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on the attachment
hereto, it has reviewed the documents listed above and has determined that
each
such document appears regular on its face and appears to relate to the Mortgage
Loan identified in such document.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement including, but not limited to, Section
2.02(b).
[Custodian], on behalf of | |
Citibank, N.A., | |
as Trustee | |
By: ________________________ | |
Name: | |
Title: |
X-0-0
XXXXXXX
X-0
FORM
OF FINAL CERTIFICATION
________________
|
|
[Date]
|
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Agency and Trust - Lehman Mortgage Trust 2006-1
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Aurora
Loan Services LLC
000
Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Re: |
Trust
Agreement dated as of January 1, 2006, (the “Trust Agreement”), among
Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services LLC, as Master Servicer, and Citibank, N.A., as Trustee,
with
respect to Xxxxxx
Mortgage
Trust
Mortgage Pass-Through Certificates, Series
2006-1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Trust Agreement, the undersigned, as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on the attachment hereto) it has received the applicable
documents listed in Section 2.02(b) of the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified in the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in items (i) through (vi) of the definition
of Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement.
[Custodian], on behalf of | |
Citibank, N.A., | |
as Trustee | |
By: ________________________ | |
Name: | |
Title: |
X-0-0
XXXXXXX
X-0
FORM
OF
ENDORSEMENT
Pay
to
the order of
Citibank, N.A.,
as
trustee (the “Trustee”) under the Trust Agreement dated as of January 1, 2006,
among Structured Asset Securities Corporation, as Depositor, Citibank,
N.A.,
as
Trustee, and Aurora Loan Services LLC, as Master Servicer, relating to Xxxxxx
Mortgage Trust Mortgage Pass-Through Certificates, Series 2006-1, without
recourse.
______________________________________
[current
signatory on note]
By:___________________________________
Name:
Title:
B-4-1
EXHIBIT
C
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
________________
|
|
[Date]
|
[Addressed
to Trustee
or,
if
applicable, custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Trust Agreement dated as of January 1, 2006 among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, and you, as Trustee (the “Trust Agreement”), the undersigned Master
Servicer hereby requests a release of the Mortgage File held by you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The Master Servicer hereby certifies that all amounts
received in connection with the loan have been or will be credited to the
Collection Account or the Certificate Account (whichever is applicable) pursuant
to the Trust Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The Master Servicer hereby certifies that a Qualifying
Substitute Mortgage Loan has been assigned and delivered to you along with
the
related Mortgage File pursuant to the Trust Agreement.)
4. Mortgage
Loan repurchased. (The Master Servicer hereby certifies that the Purchase Price
has been credited to the Collection Account or the Certificate Account
(whichever is applicable) pursuant to the Trust Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Trust Agreement and will
be
returned to you within ten (10) days of our receipt of the Mortgage File, except
if the Mortgage Loan has been paid in full, or repurchased or substituted for
a
Qualifying Substitute Mortgage Loan (in which case the Mortgage File will be
retained by us permanently).
C-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Trust
Agreement.
_____________________________________
[Name
of
Master Servicer]
By:__________________________________
Name:
Title:
Servicing Officer
C-2
EXHIBIT
D-1
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE
OF )
)
ss.:
COUNTY
OF )
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
1. That
he
[she] is [title of officer] ________________________ of [name of Purchaser]
_________________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which he [she] makes this affidavit.
2. That
the
Purchaser’s Taxpayer Identification Number is ______________.
3. That
the
Purchaser is not a “disqualified organization” within the meaning of Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the “Code”) and
will not be a “disqualified organization” as of __________________ [date of
transfer], and that the Purchaser is not acquiring a Residual Certificate (as
defined in the Agreement) for the account of, or as agent (including a broker,
nominee, or other middleman) for, any person or entity from which it has not
received an affidavit substantially in the form of this affidavit.
4. That
the
Purchaser either (x) is not, and on __________________ [date of transfer] will
not be, an employee benefit plan or other retirement arrangement subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), or Section 4975 of the Code (“Code”), (collectively, a “Plan”) or a
person acting on behalf of any such Plan or investing the assets of any such
Plan to acquire a Residual Certificate; (y) is an insurance company that is
purchasing the Certificate with funds contained in an “insurance company general
account” as defined in Section V(e) of Prohibited Transaction Class Exemption
(“PTCE”) 95-60 and the purchase and holding of the Certificate are covered under
Sections I and III of PTCE 95-60; or (z) herewith delivers to the Trustee an
opinion of counsel satisfactory to the Trustee, and upon which the Trustee,
the
Master Servicer and the Depositor shall be entitled to rely, to the effect
that
the purchase or holding of such Residual Certificate by the Investor will not
result in any non-exempt prohibited transactions under Title I of ERISA or
Section 4975 of the Code and will not subject the Trustee, the Depositor or
the
Master Servicer to any obligation in addition to those undertaken by such
entities in the Trust Agreement, which opinion of counsel shall not be an
expense of the Trust Fund or any of the above parties.
5. That
the
Purchaser hereby acknowledges that under the terms of the Trust Agreement (the
“Agreement”) among Structured Asset Securities Corporation, Citibank, N.A., as
Trustee, and Aurora Loan Services LLC, as Master Servicer, dated as of January
1, 2006, no transfer of a Residual Certificate shall be permitted to be made
to
any person unless the Depositor and the Trustee have received a certificate
from
such transferee containing the representations in paragraphs 3, 4 and 5
hereof.
D-1-1
6. That
the
Purchaser does not hold REMIC residual securities as nominee to facilitate
the
clearance and settlement of such securities through electronic book-entry
changes in accounts of participating organizations (such entity, a “Book-Entry
Nominee”).
7. That
the
Purchaser does not have the intention to impede the assessment or collection
of
any federal, state or local taxes legally required to be paid with respect
to
such Residual Certificate, and that the Purchaser has provided financial
statements or other financial information requested by the transferor in
connection with the transfer of the Residual Certificate in order to permit
the
transferor to assess the financial capability of the Purchaser to pay such
taxes.
8. That
the
Purchaser will not transfer a Residual Certificate to any person or entity
(i)
as to which the Purchaser has actual knowledge that the requirements set forth
in paragraph 3, paragraph 6 or paragraph 10 hereof are not satisfied or that
the
Purchaser has reason to believe does not satisfy the requirements set forth
in
paragraph 7 hereof, and (ii) without obtaining from the prospective Purchaser
an
affidavit substantially in this form and providing to the Trustee a written
statement substantially in the form of Exhibit G to the Agreement.
9. That
the
Purchaser understands that, as the holder of a Residual Certificate, the
Purchaser may incur tax liabilities in excess of any cash flows generated by
the
interest and that it intends to pay taxes associated with holding such Residual
Certificate as they become due.
10. That
the
Purchaser (i) is a U.S. Person or (ii) is a Non-U.S. Person that holds a
Residual Certificate in connection with the conduct of a trade or business
within the United States and has furnished the transferor and the Trustee with
an effective Internal Revenue Service Form W-8 ECI (Certificate of Foreign
Person’s Claim for exception From Withholding on Income Effectively Connected
with the Conduct of a Trade or Business in the United States) or successor
form
at the time and in the manner required by the Code. “Non-U.S. Person” means any
person other than (i) a citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of
any
state thereof, including, for this purpose, the District of Columbia; (iii)
a
partnership (or entity treated as a partnership for tax purposes) organized
in
the United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless
of
its source; (v) 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 U.S.
Persons have authority to control all substantial decisions of the trust; (vi)
and, to the extent provided in Treasury regulations, certain trusts in existence
prior to August 20, 1996 that are treated as United States persons prior to
such
date and elect to continue to be treated as United States persons.
D-2-1
11. That
the
Purchaser agrees to such amendments of the Trust Agreement as may be required
to
further effectuate the restrictions on transfer of any Residual Certificate
to
such a “disqualified organization,” an agent thereof, a Book-Entry Nominee, or a
person that does not satisfy the requirements of paragraph 7 and paragraph
10
hereof.
12. That
the
Purchaser consents to the designation of the Trustee as its agent to act as
“tax
matters person” of the Trust Fund pursuant to the Trust Agreement.
D-3-1
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________, 20__.
______________________________________
[name
of
Purchaser]
By:___________________________________
Name:
Title:
Personally
appeared before me the above-named [name of officer] ________________, known
or
proved to me to be the same person who executed the foregoing instrument and
to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________, 20__.
NOTARY
PUBLIC
_________________________________
COUNTY
OF_____________________
STATE
OF_______________________
My
commission expires the _____ day of __________, 20__.
X-0-0
XXXXXXX
X-0
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
________________
|
|
[Date]
|
Re:
|
Xxxxxx
Mortgage Trust
|
Mortgage
Pass-Through Certificates
Series
2006-1
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very
truly yours,
_______________________________
Name:
Title:
D-2-1
EXHIBIT
E
[RESERVED]
E-1
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
Re: Xxxxxx
Mortgage Trust
Mortgage
Pass-Through Certificates
Series
2006-1
Reference
is hereby made to the Trust Agreement dated as of January 1, 2006 (the “Trust
Agreement”) among Structured Asset Securities Corporation, as Depositor,
Citibank,
N.A.,
as
Trustee, and Aurora Loan Services LLC, as Master Servicer. Capitalized terms
used but not defined herein shall have the meanings given to them in the Trust
Agreement.
This
letter relates to $_________ initial Certificate Principal Amount of Class
Certificates
which are held in the form of Definitive Certificates registered in the name
of
(the
“Transferor”). The Transferor has requested a transfer of such Definitive
Certificates for Definitive Certificates of such Class registered in the name
of
[insert name of transferee].
In
connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a “qualified institutional buyer”
within the meaning of Rule 144A purchasing for its own account or for the
account of a “qualified institutional buyer”, which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Placement Agent and the Depositor.
________________________________________
[Name
of
Transferor]
By:_____________________________________
Name:
Title:
Dated:
__________________, ________
F-1
EXHIBIT
G
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTOR
________________
|
|
[Date]
|
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount of
Mortgage Pass-Through Certificates, Series 2006-1 (the “Privately Offered
Certificates”) of Structured Asset Securities Corporation (the “Depositor”)
which are held in the form of Definitive Certificates, we confirm
that:
(1) |
We
understand that the Privately Offered Certificates have not been,
and will
not be, registered under the Securities Act of 1933, as amended (the
“Securities Act”), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of
any
accounts for which we are acting as hereinafter stated, that if we
should
sell any Privately Offered Certificates within two years of the later
of
the date of original issuance of the Privately Offered Certificates
or the
last day on which such Privately Offered Certificates are owned by
the
Depositor or any affiliate of the Depositor (which includes the Placement
Agent) we will do so only (A) to the Depositor, (B) to “qualified
institutional buyers” (within the meaning of Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities
Act
(“QIBs”), (C) pursuant to the exemption from registration provided by Rule
144 under the Securities Act, or (D) to an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB (an “Institutional
Accredited Investor”) which, prior to such transfer, delivers to the
Trustee under the Trust Agreement dated as of January 1, 2006 among
the
Depositor, Citibank,
N.A.,
as Trustee (the “Trustee”), and Aurora Loan Services LLC, as Master
Servicer, a signed letter in the form of this letter; and we further
agree, in the capacities stated above, to provide to any person purchasing
any of the Privately Offered Certificates from us a notice advising
such
purchaser that resales of the Privately Offered Certificates are
restricted as stated herein.
|
(2) |
We
understand that, in connection with any proposed resale of any Privately
Offered Certificates to an Institutional Accredited Investor, we
will be
required to furnish to the Trustee and the Depositor a certification
from
such transferee in the form hereof to confirm that the proposed sale
is
being made pursuant to an exemption from, or in a transaction not
subject
to, the registration requirements of the Securities Act. We further
understand that the Privately Offered Certificates purchased by us
will
bear a legend to the foregoing
effect.
|
G-1
(3) |
We
are acquiring the Privately Offered Certificates for investment purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in violation of the Securities Act. We have such knowledge
and experience in financial and business matters as to be capable
of
evaluating the merits and risks of our investment in the Privately
Offered
Certificates, and we and any account for which we are acting are
each able
to bear the economic risk of such
investment.
|
(4) |
We
are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
(5) |
We
have received such information as we deem necessary in order to make
our
investment decision.
|
(6) |
If
we are acquiring ERISA-Restricted Certificates, we understand that
in
accordance with ERISA, the Code and the Exemption, no Plan and no
person
acting on behalf of such a Plan may acquire such Certificate except
in
accordance with Section 3.03(d) of the Trust
Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust Agreement.
G-2
You
and
the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceeding or official inquiry with respect to
the
matters covered hereby.
Very
truly yours,
__________________________________
[Purchaser]
By________________________________
Name:
Title:
G-3
EXHIBIT
H
FORM
OF
ERISA TRANSFER AFFIDAVIT
STATE
OF
NEW YORK )
)
ss.:
COUNTY
OF
NEW YORK )
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of (the “Investor”), a [corporation
duly organized] and existing under the laws of __________, on behalf of which
he
makes this affidavit.
2. The
Investor either (x) is not, and on ___________ [date of transfer] will not
be,
an employee benefit plan or other retirement arrangement subject to Section
406
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”),
(collectively, a “Plan”) or a person acting on behalf of any such Plan or
investing the assets of any such Plan; (y) if the Certificate has been the
subject of an ERISA-Qualifying Underwriting, is an insurance company that is
purchasing the Certificate with funds contained in an “insurance company general
account” as defined in Section V(e) of Prohibited Transaction Class Exemption
(“PTCE”) 95-60 and the purchase and holding of the Certificate are covered under
Sections I and III of PTCE 95-60; or (z) herewith delivers to the Trustee an
opinion of counsel satisfactory to the Trustee, and upon which the Trustee,
the
Master Servicer and the Depositor shall be entitled to rely, to the effect
that
the purchase or holding of such Certificate by the Investor will not result
in
any non-exempt prohibited transactions under Title I of ERISA or Section 4975
of
the Code and will not subject the Trustee, the Depositor or the Master Servicer
to any obligation in addition to those undertaken by such entities in the Trust
Agreement, which opinion of counsel shall not be an expense of the Trust Fund
or
any of the above parties.
3. In
the
case of an ERISA-Restricted Trust Certificate, either (i) the Investor is
neither a Plan nor a person acting on behalf of any such Plan or using the
assets of any such Plan to effect such transfer or (ii) the acquisition and
holding of the ERISA-Restricted Trust Certificate are eligible for exemptive
relief under XXXX 00-00, XXXX 00-0, XXXX 91-38, PTCE 95-60 or PTCE
96-23.
4. The
Investor hereby acknowledges that under the terms of the Trust Agreement (the
“Agreement”) among Structured Asset Securities Corporation, as Depositor,
Citibank,
N.A.,
as
Trustee, and Aurora Loan Services LLC, as Master Servicer, dated as of January
1, 2006, no transfer of the ERISA-Restricted Certificates shall be permitted
to
be made to any person unless the Depositor and Trustee have received a
certificate from such transferee in the form hereof.
H-1
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________, 20__.
________________________________________
[Investor]
By:_____________________________________
Name:
Title:
ATTEST:
___________________________
STATE
OF )
)
ss.:
COUNTY
OF )
Personally
appeared before me the above-named ___________________, known or proved to
me to
be the same person who executed the foregoing instrument and to be the
_________________ of the Investor, and acknowledged that he executed the same
as
his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of ___________ 20___.
__________________________________
NOTARY
PUBLIC
My
commission expires the
____
day
of __________, 20__.
H-2
EXHIBIT
I
MONTHLY
REMITTANCE ADVICE
I-1
EXHIBIT
J
MONTHLY
ELECTRONIC DATA TRANSMISSION
J-1
EXHIBIT
K
CUSTODIAL
AGREEMENTS
(1) Custodial
Agreement dated as of January 1, 2006, between LaSalle Bank National
Association, as Custodian, and Citibank, N.A., as Trustee.
(2) Custodial
Agreement dated as of January 1, 2006 between U.S. Bank National Association,
as
Custodian, and Citibank, N.A., as Trustee.
K-1
EXHIBIT
L
[RESERVED]
L-1
EXHIBIT
M
FORMS
OF
CAP AGREEMENTS
M-1
EXHIBIT
N-1
FORM
OF TRANSFER CERTIFICATE FOR TRANSFER
FROM
RESTRICTED GLOBAL SECURITY TO REGULATION S
GLOBAL
SECURITY PURSUANT TO SECTION 3.03(h)(B)
Re:
|
Xxxxxx
Mortgage Trust Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series
2006-1
|
Reference
is hereby made to the Trust Agreement (the “Agreement”) among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, and
Citibank, N.A.,
as
Trustee, dated as of January 1, 2006. Capitalized terms used but not defined
herein shall have the meanings given to them in the Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Restricted Global
Security with DTC in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Agreement and the Securities and in accordance with Rule 904 of
Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United States
or the Transferor and any person acting on its behalf reasonably believed that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended;
and
e. the
transferee is not a U.S. person (as
defined in Regulation S).
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation
S.
N-1
[Name
of Transferor]
By:
Name:
Title:
Date:
,
N-2
EXHIBIT
N-2
FORM
OF TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY TO
RESTRICTED
GLOBAL SECURITY PURSUANT TO SECTION 3.03(h)(C)
Re: Xxxxxx
Mortgage Trust Mortgage Pass-Through Certificates, Series 2006-1
Reference
is hereby made to the Trust Agreement (the “Agreement”) among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, and
Citibank, N.A.,
as
Trustee, dated as of January 1, 2006. Capitalized terms used but not defined
herein shall have the meanings given to them in the Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Regulations
S
Global Security in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Agreement and the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any such
account is a qualified institutional buyer within the meaning of Rule 144A,
in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction.
[Name
of Transferor]
By:
Name:
Title:
Date:
,
N-2-1
EXHIBIT
O
SENIOR
PRINCIPAL PRIORITIES
The
amount referred to in Section 5.02(a)(iii) of the Agreement shall be distributed
as follows:
3. to
the
Senior
Certificates or Components related to an Asset Pool (other than any related
Interest-Only Certificates or Interest-Only Components), to the extent of the
remaining Available Distribution Amount for the related Mortgage Pool,
concurrently, as follows:
(a) to
the
Class 1-A1, Class 1-A3, Class 1-A4, Class 1-A5, Class 1-A6 and Class R
Certificates and the AP(1) Component, in reduction of their respective Class
Principal Amounts or Component Principal Amount, from the Available Distribution
Amount for Pool 1, concurrently, as follows:
(i) to
the
Class 1-A1, Class 1-A3, Class 1-A4, Class 1-A5, Class 1-A6 and Class R
Certificates, in reduction of their respective Class Principal Amounts, up
to
the Senior Principal Distribution Amount for Pool 1, in the following order
of
priority:
(A) to
the
Class R Certificates, until their Class Principal Amount has been reduced to
zero;
(B) commencing
on the Distribution Date in February 2011, pro
rata,
to the
Class 1-A5 and Class 1-A6 Certificates, based on their respective Class
Principal Amounts, the Pool 1 Priority Amount for such Distribution Date, until
their respective Class Principal Amounts have been reduced to zero;
(C) to
the
Class 1-A3 Certificates, as follows:
0-1-1
(I) commencing
on the Distribution Date in February 2007, the lesser of (x) $286,000 and (y)
99.5% of the amount distributable pursuant to this clause (3)(a)(i)(C)(I) until
their Class Principal Amount has been reduced to zero;
(II) commencing
on the Distribution Date in September 2008, in addition to amounts distributed
pursuant to clause (1) above, the lesser of (x) $286,000 and (y) 99.5% of the
amount distributable pursuant to this clause (3)(a)(i)(C)(II) until their Class
Principal Amount has been reduced to zero; and
(III) commencing
on the Distribution Date in May 2009, in addition to amounts distributed
pursuant to clauses (1) and (2) above, the lesser of (x) $286,000 and (y) 99.5%
of the amount distributable pursuant to this clause (3)(a)(i)(C)(III) until
their Class Principal Amount has been reduced to zero; and
(D) sequentially,
to the Class 1-A1, Class 1-A3 and Class 1-A4 Certificates, in that order, until
their respective Class Principal Amounts have been reduced to zero;
(E) pro
rata,
to the
Class 1-A5 and Class 1-A6 Certificates, based on their respective Class
Principal Amounts, until their respective Class Principal Amounts have been
reduced to zero; and
(ii) to
the
AP(1) Component, the AP Principal Distribution Amount for Pool 1, until its
Component Principal Amount has been reduced to zero;
(b) pro
rata,
to the
Class 2-A1 and Class 2-A2 Certificates, in reduction of and in proportion to,
their respective Class Principal Amounts, from the Available Distribution Amount
for Pool 2, in an amount up to the Senior Principal Distribution Amount for
Pool
2, until their respective Class Principal Amounts have been reduced to zero;
and
(c) to
the
Class 3-A1, Class 3-A3, Class 3-A4, Class 3-A5 and Class 3-A6 Certificates
and
the AP(3) Component, in reduction of their respective Class Principal Amounts
or
Component Principal Amount, from the Available Distribution Amount for Pool
3,
concurrently, as follows:
(i) to
the
Class 3-A1, Class 3-A3, Class 3-A4, Class 3-A5 and Class 3-A6 Certificates,
up
to the Senior Principal Distribution Amount for Pool 3, in the following order
of priority:
(A) commencing
on the Distribution Date in February 2011, pro
rata,
to the
Class 3-A5 and Class 3-A6 Certificates, based on their respective Class
Principal Amounts, the Pool 3 Priority Amount for such Distribution Date, until
their respective Class Principal Amounts have been reduced to zero;
(B) to
the
Class 3-A3 Certificates, as follows:
(I) commencing
on the Distribution Date in February 2007, the lesser of (x) $240,000 and (y)
99.5% of the amount distributable pursuant to this clause (3)(c)(i)(B)(I) until
their Class Principal Amount has been reduced to zero;
(II) commencing
on the Distribution Date in September 2008, in addition to amounts distributed
pursuant to clause (I) above, the lesser of (x) $240,000 and (y) 99.5% of the
amount distributable pursuant to this clause (3)(c)(i)(B)(II) until their Class
Principal Amount has been reduced to zero; and
(III) commencing
on the Distribution Date in May 2009, in addition to amounts distributed
pursuant to clauses (I) and (II) above, the lesser of (x) $240,000 and (y)
99.5%
of the amount distributable pursuant to this clause (3)(c)(i)(B)(III) until
their Class Principal Amount has been reduced to zero; and
(C) sequentially,
to the Class 3-A1, Class 3-A3 and Class 3-A4 Certificates, in that order, until
their respective Class Principal Amounts have been reduced to zero;
0-1-2
(D) pro
rata,
to the
Class 3-A5 and Class 3-A6 Certificates, based on their respective Class
Principal Amounts, until their respective Class Principal Amounts have been
reduced to zero; and
(ii) to
the
AP(3) Component, the AP Principal Distribution Amount for Pool 3, until its
Component Principal Amount has been reduced to zero; and
(d) pro
rata,
to the
Class 4-A1 and Class 4-A2 Certificates, in reduction of, and in proportion
to,
their respective Class Principal Amounts, from the Available Distribution Amount
for Pool 4, in an amount up to the Group 4 Principal Distribution Amount, until
their respective Class Principal Amounts have been reduced to zero;
0-1-3
EXHIBIT
P-1
[RESERVED]
X-0-0
XXXXXXX
X-0
[RESERVED]
X-0-0
XXXXXXX
X-0
[RESERVED]
P-3-1
EXHIBIT
Q
FORM
OF
BACK-UP CERTIFICATION
[ ]
[ ]
[ ]
Structured
Asset Securities Corporation
745
7th
Avenue, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxxx
Loan Services LLC
000
Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Re: |
Xxxxxx
Mortgage Trust,
Mortgage
Pass-Through Certificates, Series
2006-1
|
Reference
is made to the Trust Agreement dated as of January 1, 2006 (the “Trust
Agreement”), by and among Citibank, N.A. (the “Trustee”), Aurora Loan Services
LLC, as master servicer (the “Master Servicer”), and Structured Asset Securities
Corporation, as depositor (the “Depositor”). The Trustee hereby certifies to the
Depositor and the Master Servicer, and its officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification,
that:
(i) |
The
Trustee has reviewed the annual report on Form 10-K for the fiscal
year [
], and all reports on Form 10-D containing distribution reports
filed in
respect of periods included in the year covered by that annual
report,
relating to the above-referenced
trust;
|
(ii) |
Based
solely upon the information provided to us by pursuant to Section
6.20(d)
and 6.20(e) and the information provided by us pursuant to Section
6.20(d)
and 6.20(e), the information set forth in the reports referenced
in (i)
above does not contain any untrue statement of material fact;
and
|
(iii) |
Based
on my knowledge, the distribution information required to be provided
by
the Trustee under the Trust Agreement is included in these
reports.
|
Date:
Citibank, N.A., as Trustee | ||
|
|
|
By: ____________________________ Name: ____________________________
Title: ____________________________
|
Q-1
EXHIBIT
R
FORM
OF
CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT OF COMPLIANCE
To:
Structured
Asset Securities Corporation
000
0xx
Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxxx
Brothers Holdings Inc.
000
0xx
Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Reference
is made to that certain Trust Agreement dated as of January 1, 2006 (the
“Agreement”), by and among Citibank, N.A. (the “Trustee”), Aurora Loan Services
LLC, as master servicer (the “Master Servicer”), and Structured Asset Securities
Corporation, as depositor (the “Depositor”) with respect to Xxxxxx Mortgage
Trust Mortgage Pass-Through Certificates, Series 2006-1. This certification
is
delivered pursuant to Section [6.01(a)] [9.25] of the Agreement. Capitalized
terms used herein but not otherwise defined shall have the meanings set forth
in
the Agreement.
_________________________,
the undersigned, a duly authorized _______________ of the [Trustee] [Master
Servicer], does hereby certify that the assessment of compliance to be delivered
by the [Trustee] [Master Servicer] shall
address, at a minimum, the criteria identified below as “Applicable Servicing
Criteria” as identified by a xxxx in the column titled “Applicable Servicing
Criteria.”
Servicing
Criteria
|
Applicable
Servicing 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.
|
R-1
R-1
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
Reference
|
Criteria
|
|
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.
|
|
|
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 required by the transaction
agreements or related mortgage loan documents.
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
R-2
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
Reference
|
Criteria
|
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.
|
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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.
|
|
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.
|
|
|
|
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[Signature
Page Follows]
R-3
STRUCTURED
ASSET SECURITIES CORPORATION,
as
Depositor
By:_____________________________________
Name:
Title:
|
XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
By:_____________________________________
Name:
Title:
|
R-4
EXHIBIT
S
TRANSACTION
PARTIES
Sponsor
and Seller: Xxxxxx Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
Citibank, N.A.
Master
Servicer: Aurora Loan Services LLC
Cap
Counterparty: Xxxxxx
Brothers Special Financing Inc.
Servicer:
Aurora Loan Services LLC
Originator:
Xxxxxx Brothers Bank FSB
Custodian(s):
LaSalle Bank National Association and U.S. Bank National Association
S-1
SCHEDULE
A
ALL
MORTGAGE LOANS
(by
Mortgage Pool)
Sch
A-1
SCHEDULE
B-1
AX
MORTGAGE LOANS
(by
Mortgage Pool)
Sch
B-1-1
SCHEDULE
B-2
PAX
MORTGAGE LOANS
(by
Mortgage Pool)
Sch
B-2-1