STRUCTURED ASSET SECURITIES CORPORATION, as Depositor and WELLS FARGO BANK, N.A., as Trustee TRUST AGREEMENT Dated as of May 1, 2008 LEHMAN MORTGAGE TRUST MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2008-3
Execution
STRUCTURED
ASSET SECURITIES CORPORATION, as Depositor
and
XXXXX
FARGO BANK, N.A.,
as
Trustee
___________________________
Dated
as
of May 1, 2008
___________________________
XXXXXX
MORTGAGE TRUST
MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES
2008-3
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
2
|
|
Section
1.01. Definitions.
|
2
|
|
Section
1.02. Calculations Respecting Accrued Interest.
|
11
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
11
|
|
Section
2.01. Creation and Declaration of Trust Fund; Conveyance of Underlying
Security.
|
11
|
|
Section
2.02. Issuance of Certificates.
|
12
|
|
Section
2.03. Designation of Start-up Day.
|
13
|
|
Section
2.04. REMIC Certificate Maturity Date.
|
13
|
|
Section
2.05. Representations and Warranties of the Depositor.
|
13
|
|
ARTICLE
III THE CERTIFICATES
|
14
|
|
Section
3.01. The Certificates.
|
14
|
|
Section
3.02. Registration.
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14
|
|
Section
3.03. Transfer and Exchange of Certificates.
|
15
|
|
Section
3.04. Cancellation of Certificates.
|
18
|
|
Section
3.05. Replacement of Certificates.
|
18
|
|
Section
3.06. Persons Deemed Owners.
|
18
|
|
Section
3.07. Temporary Certificates.
|
18
|
|
Section
3.08. Appointment of Paying Agent.
|
19
|
|
Section
3.09. Book-Entry Certificates.
|
20
|
|
ARTICLE
IV ADMINISTRATION OF THE UNDERLYING SECURITY
|
21
|
|
Section
4.01. Collection of Payments on Underlying Security; Certificate
Account.
|
21
|
|
Section
4.02. No Exchanges of the Underlying Security.
|
22
|
|
Section
4.03. Reports to Certificateholders.
|
22
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
23
|
|
Section
5.01. Distributions Generally.
|
23
|
|
Section
5.02. Distributions from the Certificate Account.
|
24
|
|
Section
5.03. Allocation of Realized Loss Amounts.
|
24
|
|
ARTICLE
VI CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
|
25
|
|
Section
6.01. Duties of Trustee.
|
25
|
|
Section
6.02. Certain Matters Affecting the Trustee.
|
26
|
|
Section
6.03. Trustee Not Liable for Certificates.
|
27
|
|
Section
6.04. Trustee May Own Certificates.
|
28
|
|
Section
6.05. Eligibility Requirements for Trustee.
|
28
|
|
Section
6.06. Resignation and Removal of Trustee.
|
28
|
|
Section
6.07. Successor Trustee.
|
29
|
|
Section
6.08. Merger or Consolidation of Trustee.
|
29
|
|
Section
6.09. Authenticating Agents.
|
30
|
|
Section
6.10. Indemnification of Trustee.
|
30
|
|
Section
6.11. Fees and Expenses of Trustee.
|
31
|
|
Section
6.12. Preparation of Tax Returns and Other Reports.
|
31
|
i
|
Section
6.13. No Merger.
|
37
|
|
Section
6.14. Indemnification by the Trustee and Paying Agent.
|
38
|
|
Section
6.15. Compliance with Regulation AB.
|
38
|
|
Section
6.16. Assessment of Compliance and Attestation Reports.
|
38
|
|
Section
6.17. Limitation on Liability of the Depositor and Others.
|
39
|
|
ARTICLE
VII PURCHASE AND TERMINATION OF THE TRUST FUND
|
40
|
|
Section
7.01. Termination of Trust Fund Upon Distribution to
Certificateholders.
|
40
|
|
Section
7.02. Failure of Certificateholders to Surrender
Certificates.
|
40
|
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
41
|
|
Section
8.01. Limitation on Rights of Holders.
|
41
|
|
Section
8.02. Access to List of Holders.
|
41
|
|
Section
8.03. Acts of Holders of Certificates.
|
42
|
|
ARTICLE
IX [Reserved.]
|
43
|
|
ARTICLE
X REMIC ADMINISTRATION
|
43
|
|
Section
10.01. REMIC Administration.
|
43
|
|
Section
10.02. Prohibited Transactions and Activities.
|
44
|
|
Section
10.03. Indemnification with Respect to Certain Taxes and Loss of
REMIC
Status.
|
45
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
45
|
|
Section
11.01. Binding Nature of Agreement; Assignment.
|
45
|
|
Section
11.02. Entire Agreement.
|
45
|
|
Section
11.03. Amendment.
|
45
|
|
Section
11.04. Voting Rights.
|
46
|
|
Section
11.05. Provision of Information.
|
47
|
|
Section
11.06. Governing Law.
|
47
|
|
Section
11.07. Notices.
|
47
|
|
Section
11.08. Severability of Provisions.
|
47
|
|
Section
11.09. Indulgences; No Waivers.
|
47
|
|
Section
11.10. Headings Not To Affect Interpretation.
|
48
|
|
Section
11.11. Benefits of Agreement.
|
48
|
|
Section
11.12. Special Notices to the Rating Agencies.
|
48
|
|
Section
11.13. Counterparts.
|
49
|
|
Section
11.14. Action Under and Conflicts With Underlying Trust
Agreement.
|
49
|
ii
Exhibits
|
Exhibit
A
|
Forms
of Certificates
|
|
Exhibit
X-x
|
Form
of Residual Certificate Transfer Affidavit (Transferee)
|
|
Exhibit
B-2
|
Form
of Residual Certificate Transfer Affidavit (Transferor)
|
|
Exhibit
C
|
Schedule
of Underlying Securities
|
|
Exhibit
D
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
|
Exhibit
E
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
F
|
Transaction
Parties
|
|
Exhibit
G-1
|
Additional
Form 10-D Disclosure
|
|
Exhibit
G-2
|
Additional
Form 10-K Disclosure
|
|
Exhibit
G-3
|
Additional
Form 8-K Disclosure
|
|
Exhibit
G-4
|
Additional
Disclosure Notification
|
|
Exhibit
H
|
Form
Certification to be Provided to Depositor by the
Trustee
|
|
Exhibit
I
|
Relevant
Servicing Criteria to be Addressed in Report on Assessment of
Compliance
|
|
Exhibit
J
|
Underlying
Trust Agreement Related to the Underlying
Security
|
iii
This
TRUST AGREEMENT dated as of May 1, 2008 (the “Agreement”), is by and between
STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as depositor
(the “Depositor”) and XXXXX
FARGO BANK, N.A.,
as
trustee (the “Trustee”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Underlying Security (as defined herein) from Xxxxxx
Brothers Holdings Inc. (the “Seller”) and at the Closing Date is the owner of
the Underlying Security and the other property being conveyed by it to the
Trustee 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 Underlying Security 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 Underlying
Security and the other property constituting the Trust Fund. All covenants
and
agreements made by the Depositor and the Trustee herein with respect to the
Underlying Security and the other property constituting the Trust Fund are
for
the benefit of the Holders from time to time of the Certificates. The Depositor
is 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.
The
REMIC
As
provided herein, the Trustee shall elect that the Trust Fund be treated for
federal income tax purposes as a single real estate mortgage investment conduit
(a “REMIC”). Each Class of Certificates (other than the Class R Certificate) is
hereby designated as a regular interest in the REMIC.
The
Certificates
The
following sets forth (or describes) the Class designation, Interest Rate, the
initial Class Principal Amount and minimum denomination for each Class of
Certificates issued hereunder.
|
Class
|
Initial
Certificate
Principal
Amount
|
Interest
Rate
|
Minimum
Denominations
|
|
A1
|
$201,824,000
|
(1)
|
$25,000
|
|
A2
|
$
50,456,617
|
(1)
|
$25,000
|
|
R
|
$
0.00
|
(2)
|
(2)
|
___________
|
(1)
|
The
Interest Rate with respect to any Distribution Date (and the related
Accrual Period) for each of the Class A1 and Class A2 Certificates
is the
per annum rate equal to LIBOR plus
0.370%.
|
|
(2)
|
The
Class R Certificate will not bear interest, and will be issued in
a single
Certificate representing a 100% Percentage Interest in such
Class.
|
In
consideration of the mutual agreements herein contained, the Depositor and
the
Trustee hereby agree as follows:
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 6.12(f)(i).
Accountant:
A
person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accrual
Period:
With
respect to any Distribution Date and any Class of Certificates (other than
the
Class R Certificate), the period beginning on the immediately preceding
Distribution Date (or for the first Accrual Period, on May 25, 2008) and ending
on the day immediately preceding the related Distribution Date, provided
that
each Accrual Period (except for the first Accrual Period) shall be comprised
of
30 days. Interest shall accrue on such Class of Certificates (other than the
Class R Certificate) on the basis of a 360-day year comprising twelve 30-day
months.
Act:
As
defined in Section 8.03(a).
Additional
Form 10-D Disclosure:
As
defined in Section 6.12(e)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 6.12(f)(i).
Adverse
REMIC Event:
As
defined in Section 10.01(e).
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
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.
Authenticating
Agent:
Any
authenticating agent appointed by the Trustee pursuant to Section
6.09.
Authorized
Officer:
Any
Person who may execute an Officer’s Certificate, as specified in the definition
thereof, on behalf of the Depositor.
Back-Up
Certification:
As
defined in Section 6.12(e)(iv).
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
on the Class Table, other than the Class R Certificate, constitute Book-Entry
Certificates.
2
Business
Day:
Any day
other than (i) a Saturday or a Sunday or (ii) a day on which the Federal Reserve
or banking institutions in New York, Maryland, Minnesota or Colorado, or, if
other than New York, the city in which the Corporate Trust Office of the Trustee
is located, are authorized by law or executive order to be closed.
Carryforward
Interest:
With
respect to each Class of Senior Certificates and any Distribution Date, the
sum
of (1) the amount, if any, by which (x) the sum of (A) Current Interest for
such
Class for the immediately preceding Distribution Date and (B) any unpaid
Carryforward Interest for such Class from previous Distribution Dates exceeds
(y) the amount distributed in respect of interest on such Class on such
immediately preceding Distribution Date and (2) interest on such amount for
the
related Accrual Period at the applicable Interest Rate.
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
4.01.
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 Class R 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, less
the
amount of all principal distributions previously made with respect to such
Certificate and all Realized Loss Amounts allocated to such Certificate. 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. The Class R Certificate is issued without
a
Certificate Principal Amount.
Certificate
Register
and
Certificate
Registrar:
The
register maintained and the registrar appointed pursuant to Section
3.02.
Certificateholder:
The
meaning provided in the definition of “Holder.”
Certification
Parties:
As
defined in Section 6.12(e)(iv).
Certifying
Person:
As
defined in Section 6.12(e)(iv).
Class:
All
Certificates bearing the same class designation.
Class
A1 Certificates:
The
Class of Certificates with the characteristics as set forth in the Class
Table.
3
Class
A2 Certificates:
The
Class of Certificates with the characteristics as set forth in the Class
Table.
Class
Principal Amount:
With
respect to each Class of Certificates other than the Class R Certificate, the
aggregate of the Certificate Principal Amounts of all Certificates of such
Class
at the date of determination. With respect to the Class R Certificate, zero.
Class
R Certificate:
The
Class of Certificates with the characteristics as set forth in the Class
Table.
Class
Table:
The
table in the Preliminary Statement under “The Certificates” setting forth the
characteristics of each Class of Certificates.
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:
May 30,
2008.
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.
Commission:
U.S.
Securities and Exchange Commission.
Corporate
Trust Office:
With
respect to the Trustee, the principal corporate trust office at which, at any
particular time, its corporate trust business shall be administered, which
office at the date hereof is located at (a) for purposes of presentment,
exchange and surrender of the Certificates, Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx
xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services, LMT 2008-3 and (b) for all other purposes, Xxxxx Fargo Bank, N.A.,
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Service
Manager, LMT 2008-3.
Current
Interest:
With
respect to each Class of Senior Certificates and with respect to any
Distribution Date, the aggregate amount of interest accrued at the applicable
Interest Rate during the related Accrual Period on the Class Principal Amount
of
such Class immediately prior to such Distribution Date.
Cut-off
Date:
May 1,
2008.
Cut-off
Month:
May
2008.
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation having its
principal place of business in New York, or its successors in
interest.
4
Disqualified
Organization:
A
“disqualified organization” as defined in Section 860E(e)(5) of the
Code.
Distribution
Date:
The
25th
day of
each month, or, if such 25th
day is
not a Business Day, the next succeeding Business Day commencing in June
2008.
Distribution
Date Statement:
As
defined in Section 4.03(a) hereof.
Due
Period:
With
respect to each Underlying Distribution Date and each Underlying Mortgage Loan,
the period beginning on the second day of the month preceding the month in
which
such Underlying Distribution Date occurs and ending on the first day of the
month in which such Underlying Distribution Date occurs.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company which have been rated by each Rating
Agency in one of its two highest long-term and its highest short-term rating
categories, respectively, at the time any amounts are held on deposit therein,
provided,
that
following a downgrade, withdrawal, or suspension of such institution’s rating
below such ratings set forth above, each account shall promptly (and in any
case
within not more than 30 calendar days) be moved to an Eligible Account or to
one
or more segregated trust accounts in the trust department of such institution
which has the required ratings, or (ii) a segregated trust account or accounts
(which shall be a “special deposit account”) maintained with the Trustee 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.
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 (1)
Class R Certificate or (2) any Certificate with a rating below the lowest
applicable rating permitted under the Underwriter’s Exemption.
Euroclear:
JPMorgan Chase Bank, Brussels office, as operator of the Euroclear
System.
Exchange
Act:
The
Securities and Exchange Act of 1934, as amended.
Exchange
Act Signing Party:
The
Depositor.
Expense
Cap:
On a
calendar year basis and as of any Distribution Date in such calendar year,
the
excess of (1) $200,000 over (2) any costs, expenses and liabilities reimbursable
to the Trustee applied on previous Distribution Dates in reduction of the
Interest Remittance Amounts for such Distribution Dates.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
Final
Scheduled Distribution Date:
With
respect to each Class of Certificates, the Distribution Date in February 2037.
Fitch:
Fitch
Ratings or any successor in interest.
Form
8-K Disclosure Information:
As
defined in Section 6.12(g)(i).
5
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
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 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 in determining whether
any
Certificates are registered to an Affiliate of the Depositor.
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.
Initial
LIBOR Rate:
2.3925%
per annum.
Interest
Rate:
With
respect to each Class of Certificates, the applicable per annum rate formula
specified or determined as provided in the Class Table.
Interest
Remittance Amount:
With
respect to each Class of Offered Certificates and any Distribution Date, the
excess, if any, of (i) the amount of interest received by the Trustee in respect
of the Underlying Security on the related Underlying Distribution Date over
(ii)
any costs, expenses or indemnification amounts reimbursable to the Trustee
(but
in no event shall such costs, expenses or indemnification amounts exceed the
Expense Cap for the calendar year related to such Distribution
Date).
Latest
Possible Maturity Date:
The
Distribution Date occurring in February, 2037.
LBH:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
LIBOR:
(a)
With respect to the first Accrual Period, the Initial LIBOR Rate. With respect
to each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the 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 Reuters
Screen “LIBOR01,” as of 11:00 a.m. (London time) on such LIBOR Determination
Date.
(b) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Reuters Screen “LIBOR01” as of 11:00 a.m. (London time), or if the
Reuters Screen LIBOR01 is not available on such date, the Trustee will obtain
such rate from the Bloomberg L.P. page “US0001M.” If any such rate is not
published for such LIBOR Determination Date, LIBOR for such date will be the
most recently published Interest Settlement Rate. In the event that the BBA
no
longer sets an Interest Settlement Rate, the 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 (a copy of which shall be furnished to the
Trustee), which opinion shall be an expense reimbursed from the Certificate
Account pursuant to Section 4.01, that the selection of such index will not
cause any of the REMICs to lose their classification as REMICs for federal
income tax purposes.
6
(c) The
establishment of LIBOR by the Trustee and the Trustee’s subsequent calculation
of the Interest Rate applicable to the LIBOR Certificates for the relevant
Accrual Period, in the absence of manifest error, will be final and
binding.
LIBOR
Business Day:
Any day
on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
LIBOR
Certificate:
Any
Class A1 or Class A2 Certificate.
LIBOR
Determination Date:
The
second LIBOR Business Day preceding the commencement of each Accrual Period
(other than the first Accrual Period).
Mortgage
Pool:
The
Underlying Mortgage Loans in the aggregate.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
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.
Offered
Certificates:
The
Class A1 Certificates and the Class A2 Certificates.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Trustee or the Depositor, as applicable, and who may be in-house or outside
counsel to the Depositor or the Trustee
but which must be Independent outside counsel with respect to any such opinion
of counsel concerning the transfer of any Residual Certificate or concerning
certain matters with respect to ERISA, or the taxation, or the federal income
tax status, of each REMIC.
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 the Class R Certificate, the Percentage Interest evidenced thereby
shall be as specified on the face thereof, or otherwise be equal to
100%.
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.
7
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
2:
The
mortgage pool consisting of those Underlying Mortgage Loans constituting Pool
2
of the Underlying Trust Fund, and which shall further consist of Collateral
Group 2A, Collateral Group 2B and Collateral Group 2C (each as defined in the
Underlying Trust Agreement).
Principal
Remittance Amount:
With
respect to any Distribution Date, the aggregate amount of principal received
by
the Trustee in respect of the Underlying Security on the related Underlying
Distribution Date.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Prospectus:
The
prospectus supplement dated May 29, 2008, together with the accompanying
prospectus dated May 29, 2008, relating to the Offered
Certificates.
QIB:
A
“qualified institutional buyer” as defined in Rule 144A under the Securities
Act.
Rating
Agency:
Each of
Fitch and S&P.
Realized
Loss Amount:
With
respect to any Distribution Date, the excess of the aggregate Class Principal
Amount of the Offered Certificates over the principal balance of the Underlying
Security for such Distribution Date, in each case after giving effect to all
distributions of principal on such Distribution Date.
Record
Date:
With
respect to each Distribution Date and each Class of Offered Certificates, the
Business Day immediately preceding the related Distribution Date. With respect
to the Class R Certificate and any Class of Definitive Certificates and any
Distribution Date, the last Business Day of the month immediately preceding
the
month in which the Distribution Date occurs (or, in the case of the first
Distribution Date, the Closing Date).
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.
Reimbursement
Amount:
Not
applicable.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit I attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Paying
Agent or the Trustee, the term “Relevant Servicing Criteria” may refer to a
portion of the Relevant Servicing Criteria applicable to such
parties.
REMIC:
The
pool of assets in the Trust Fund designated as a REMIC pursuant to Section
10.01(a) hereof.
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.
8
Reportable
Event:
As
defined in Section 6.12(f)(i).
Reporting
Servicer:
As
defined in Section 6.12(e)(i).
Residual
Certificate:
The
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 Office and having direct
responsibility for the administration of this Agreement.
Restricted
Certificate:
Any
Class R Certificate.
Reuters
Screen “LIBOR01”:
The
display page currently so designated on the Reuters Monitor Money Rates Service
(or such other page as may replace that page for the purpose of displaying
comparable rates or prices).
Rules:
As
defined in Section 6.12(d).
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:
None.
Scheduled
Principal Balance:
With
respect to any Distribution Date, the aggregate scheduled principal balance
of
the underlying Mortgage Loans as reflected in the related Underlying
Distribution Date Statement.
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Intermediary:
The
meaning specified in Section 8-102(a)(14) of the UCC. The Securities
Intermediary shall be Xxxxx Fargo Bank, N.A.
Securities
Purchase Agreement:
The
Securities Purchase Agreement dated the Closing Date between Xxxxxx Brothers
Holdings Inc., as seller, and the Depositor, as purchaser.
Seller:
LBH or
any successor in interest, as the context may require.
Senior
Certificates:
The
Class A1 and Class A2 Certificates.
9
Servicing
Function Participant:
Any
Subcontractor or any other Person, other than the Paying Agent and the Trustee,
that is participating in the servicing function within the meaning of Regulation
AB.
Specified
Rating:
A
rating of “AAA” by Fitch and “AAA” by S&P.
Sponsor:
LBH.
Startup
Day:
The day
designated as such pursuant to Section 2.03 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) but performs one or more discrete material
functions required to be performed by the Trustee under this Agreement, any
servicing agreement or any subservicing agreement, as identified in Item 1122(d)
of Regulation AB, under the direction or authority of the Trustee.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Treasury
Regulations:
U.S.
Department of Treasury regulations issued in temporary or final
form.
Trust
Fund:
The
corpus of the Xxxxxx Mortgage Trust 2008-3 created pursuant to this Agreement,
consisting of (i) the Underlying Security, (ii) all distributions on the
Underlying Security payable after the Closing Date, and (iii) all amounts held
from time to time by the Trustee in the Certificate Account.
Trust
Fund Termination Event:
As
defined in Section 7.01(a).
Trustee:
Xxxxx
Fargo Bank, N.A., and its successors or assigns, not in its individual capacity
but solely as Trustee, 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.
Underlying
Custodians:
As of
the Cut-off Date, Deutsche Bank National Trust Company, LaSalle Bank National
Association and U.S. Bank National Association, each in their capacity as a
custodian of the related Underlying Mortgage Loans, or any successor
thereto.
Underlying
Custodial Agreement:
Each
custodial agreement between the Underlying Trustee and an Underlying
Custodian.
Underlying
Cut-off Date:
January
1, 2007.
Underlying
Distribution Date:
The
25th day of each month or, if the 25th day is not a Business Day, the next
succeeding Business Day.
Underlying
Distribution Date Statement:
The
report provided by the Underlying Trustee to the holder of Underlying Security
in connection with each Underlying Distribution Date.
Underlying
Exchange Trust Agreement:
The
Exchange Trust Agreement dated as of January 1, 2007, entered into by and among
Structured Asset Securities Corporation and the Trustee for the issuance of
certain exchange and exchangeable certificates.
10
Underlying
Master Servicer:
Aurora
Loan Services LLC, or its successor in interest.
Underlying
Mortgage Loan:
The
conventional, fixed rate, fully amortizing and balloon, first lien residential
mortgage loans included in Pool 2 of the Underlying Trust Fund as of the Closing
Date.
Underlying
Prospectus:
The
prospectus supplement dated January 27, 2007, together with the accompanying
prospectus dated November 13, 2006, relating to the Underlying
Security.
Underlying
Security:
The
class of securities identified on Exhibit C hereto.
Underlying
Trust Agreement:
The
trust agreement dated as of January 1, 2007, among the Depositor, the Underlying
Master Servicer and the Underlying Trustee and attached as Exhibit J
hereto.
Underlying
Trust Fund:
The
trust fund established under the Underlying Trust Agreement in connection with
the Underlying Mortgage Loans.
Underlying
Trustee:
Xxxxx
Fargo Bank, N.A.
Underwriter:
Xxxxxx
Brothers Inc.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2007-5, 72 Fed. Reg. 13130 (2007), as
amended (or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
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. 1% of
all
Voting Interests shall be allocated to the Class R Certificate and the remaining
Classes of Certificates shall be allocated the remaining percentage of all
Voting Interests. 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).
Section
1.02. Calculations
Respecting Accrued Interest.
Accrued
interest, if any, on any Certificate shall be calculated based upon a 360-day
year consisting of twelve 30-day months.
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
Section
2.01. Creation
and Declaration of Trust Fund; Conveyance of Underlying Security.
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, convey, sell and assign to the Trustee, on behalf of the Holders
of
the Certificates, without recourse, all the right, title and interest of the
Depositor in and to the Underlying Security, including all distributions thereon
payable on and after the Underlying Distribution Date in the Cut-off Month.
In
connection with such assignment, the Depositor shall have caused the Underlying
Security to be registered with the Depository in the name of the Securities
Intermediary for the account of the Trustee, as trustee, together with such
opinions of counsel and other documents as shall be necessary to cause
registration of transfer of such Underlying Security to the Trustee to be made
and, if applicable, to obtain a duly issued and authenticated physical
certificate evidencing such Underlying Security registered in the name of the
Trustee or its nominee, and a copy (which may be on electronic media) of the
Underlying Trust Agreement.. The assignment of the Underlying Security
accomplished hereby is absolute and is intended as a sale. The Depositor
represents and covenants that the Underlying Security as of the Closing Date
is
free and clear of any right, charge, security interest or lien or claim in
favor
of the Depositor or any person claiming through the Depositor and that the
Depositor has, as of the Closing Date, the right to assign the Underlying
Security to the Trustee. The Depositor shall cooperate with the Trustee in
providing any required transfer documentation with respect to such conveyance.
Any payment received by the Depositor on or prior to the Closing Date which
shall be due to the Trustee hereunder shall be paid immediately upon receipt
to
the Trustee and in no event later than the Closing Date. Any payment received
by
the Depositor after the Closing Date as a distribution on the Underlying
Security and which is due to the Trustee hereunder shall be paid to the Trustee
immediately upon receipt of such payment.
11
In
the event that any Underlying Security is not registered on the Closing Date
in
the name of the Trustee, the Trustee shall take all reasonable action necessary
to cause such Underlying Security to be so registered as promptly as practicable
(provided
that,
except as provided herein, the Trustee shall not thereby assume any other of
the
Depositor’s obligations hereunder).
In
the event that any Underlying Security has not been delivered or transferred
to
the Trustee, together, in the case of Underlying Security in definitive form,
with any documentation necessary to effect the assignment thereof to the
Trustee, within five Business Days after the Closing Date, the Depositor shall
immediately repurchase such Underlying Security for a price equal to the
purchase price paid by the Depositor thereof as specified in the Securities
Purchase Agreement, plus
interest accrued thereon at the interest rate at which the Underlying Security
bears interest from the Closing Date until the date of repurchase.
It
is the intention of the Depositor that the transfer and assignment of the
Underlying Security shall constitute a sale from the Depositor to the Trustee
for the benefit of the Certificateholders and that such Underlying Security
shall not be a part of the Depositor’s property or estate for any purpose under
state or federal law, including without limitation in the event of the
insolvency of the Depositor. In the event the transfer and assignment of the
Underlying Security contemplated by this Agreement is deemed to be other than
a
sale notwithstanding the intent of the parties hereto, this Agreement shall
be
deemed to be and in such event hereby is the grant of a security interest from
the Depositor to the Trustee, and the Trustee shall have all the rights, powers
and privileges of a secured party under the UCC in effect in the applicable
jurisdiction. In such event, the Depositor agrees to take such action and
execute such documents as shall be necessary in order to fully realize the
benefits of such secured party status, including, without limitation, powers
of
attorney, financing statements, notices of lien or other instruments or
documents.
(b) The
issuing entity is hereby named Xxxxxx Mortgage Trust, Series
2008-3.
Section
2.02. Issuance
of Certificates.
The
Trustee acknowledges the transfer and delivery to it of the Underlying Security
in the manner described in Section 2.01 hereof and declares that the Trustee
holds and will hold such Underlying Security in trust for the benefit of all
present and future Certificateholders and, concurrently with such transfer
and
delivery, has caused to be duly executed, authenticated and delivered to or
upon
the order of the Depositor the Certificates in authorized denominations,
registered in such names as the Depositor has requested.
12
Section
2.03. Designation
of Start-up Day.
The
Closing Date is hereby designated as the “start-up day” of the REMIC within the
meaning of Section 860G(a)(9) of the Code
Section
2.04. REMIC
Certificate Maturity Date.
Solely
for purposes of satisfying Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the “latest possible maturity date” of the Certificates is the
Distribution Date five years after the latest “Final Payment Date” for the
Underlying Security as specified in Annex C to the Prospectus.
Section
2.05. Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Trustee, for the benefit of
Certificateholders, 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;
(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;
13
(vi) immediately
prior to the assignment and transfer by the Depositor of the Underlying Security
to the Trustee, the Depositor was the sole owner of the Underlying Security
and
had full right and authority to sell, assign and transfer the Underlying
Security, subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other interest of
any
nature;
(vii) as
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Underlying Security to the Trustee; and
(viii) the
Depositor has not transferred the Underlying Security to the Trustee with any
intent to hinder, delay or defraud any of its creditors.
ARTICLE
III
THE
CERTIFICATES
Section
3.01. The
Certificates.
(a) The
Certificates shall be issuable in registered form only and shall be securities
governed by Article 8 of the New York Uniform Commercial Code. The Book-Entry
Certificates will be evidenced by one or more certificates, beneficial ownership
of which will be held in the dollar denominations in Certificate Principal
Amount specified herein. Each Class of Book-Entry Certificates shall be issued
in the minimum denominations in Certificate Principal Amount specified in the
Preliminary Statement hereto and in integral multiples of $1 in excess thereof.
The Residual Certificate shall be issued as a single Certificate and maintained
in definitive, fully registered form in a minimum denomination equal to 100%
of
the Percentage Interest of such Class. The Certificates may be issued in the
form of typewritten certificates. One Certificate of each Class of Certificates
other than the Residual Certificate 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 signatory. Each Certificate shall, on original issue,
be authenticated by the Trustee upon the order of the Depositor upon receipt
by
the Trustee of the Underlying Security pursuant to 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 signatory 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.
Section
3.02. Registration.
The
Trustee is hereby appointed, and hereby accepts its appointment as, Certificate
Registrar in respect of the Certificates and shall maintain books for the
registration and for the transfer of Certificates (the “Certificate Register”).
The Certificate Registrar may resign or be discharged or removed and a new
successor may be appointed by the Trustee 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 Depositor, 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.
14
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.
(c) By
acceptance of a Restricted Certificate, 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.
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 D 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 D hereto.
(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
Certificate Registrar has received (A) a certificate substantially in the form
of Exhibit E hereto (or Exhibit B-1, in the case of a Residual Certificate)
from
such transferee or (B) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar 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
Certificate Registrar or the Depositor to any obligation in addition to those
undertaken in the Agreement; provided,
however,
that the
Certificate Registrar will not require such certificate or opinion in the event
that, as a result of a change of law or otherwise, the Certificate Registrar
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 E. The
preparation and delivery of the certificate and opinions referred to above
shall
not be an expense of the Trust Fund, the Trustee, the Certificate Registrar
or
the Depositor.
15
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates. The Trustee and the Certificate
Registrar 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 and the Certificate Registrar 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 Certificate Registrar in accordance with the
foregoing requirements. The Trustee and the Certificate Registrar 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 and the Certificate
Registrar shall be paid and delivered by the Trustee and the Certificate
Registrar to the last preceding Holder of such Certificate that is not such
a
Plan or Person acting on behalf of a Plan.
If
any
ERISA-Restricted 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 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 and the Trustee from and
against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.
The
Trustee shall not be under any 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.
(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.
16
(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
B-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
B-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 a
Responsible Officer of the Trustee shall have actual knowledge at the time
of
such transfer or the time of such payment or other action that the transferee
is
a Disqualified Organization, 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.
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).
17
(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.
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 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 Trustee and any Authenticating
Agent that such destroyed, lost or stolen Certificate has been acquired by
a
bona
fide
purchaser, the Trustee shall execute and the Trustee or any Authenticating
Agent
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Certificate Principal Amount. Upon the issuance of any new Certificate
under this Section 3.05, the Trustee and Authenticating Agent may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee or the Authenticating Agent) connected therewith.
Any replacement Certificate issued pursuant to this Section 3.05 shall
constitute complete and indefeasible evidence of ownership in the applicable
Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section
3.06. Persons
Deemed Owners.
Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the
Depositor, the 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 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.
18
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.
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 6.16(a) and 6.16 (b) of this Agreement,
(ii) to comply with the provisions of Section 6.16 (a), 6.16 (b), 6.12(e)(i)
and
6.12(e)(iv)of this Agreement and (iii) to indemnify the Depositor and its
directors, officers, employees and agents, and the Trust Fund, and hold each
of
them harmless as set forth in Section 6.14. For so long as the Depositor is
subject to Exchange Act reporting requirements with respect to the Trust, the
Paying Agent (if other than the Trustee) shall give prior written notice to
the
Sponsor, the Trustee and the Depositor of the appointment of any Subcontractor
by it and a written description (in form and substance reasonably satisfactory
to the Sponsor and the Depositor) of the role and function of each Subcontractor
utilized by the Paying Agent, as applicable, specifying (A) the identity of
each
such Subcontractor and (B) which elements of the servicing criteria set forth
under Item 1122(d) of Regulation AB will be addressed in assessments of
compliance provided by each Subcontractor for
which
the Paying Agent does not elect to take responsibility for assessing compliance
with the Servicing Criteria in accordance with Regulation AB Telephone
Interpretation 17.06. In addition, for so long as the Depositor is subject
to
Exchange Act reporting requirements with respect to the Trust, the Paying Agent
(including the Trustee in its capacity as Paying Agent, to the extent not
already required of the Trustee under this Agreement) shall notify the Sponsor,
the Trustee and the Depositor within five (5) calendar days of knowledge thereof
(i) of any legal proceedings pending under the Paying Agent of the type
described in Item 1117 (§ 229.1117) of Regulation AB, (ii) any merger,
consolidation or sale of substantially all of the assets of the Paying Agent
and
(iii) if the Paying Agent shall become (but only to the extent not previously
disclosed) at any time an affiliate of any of the parties listed on Exhibit
F
hereto or any of their affiliates. On or before March 1st
of each
year, the Depositor shall distribute the information in Exhibit F to the Paying
Agent.
Any
Paying Agent (if other than the Trustee) agrees to indemnify the Depositor
and
the Trustee (if other than the Paying Agent) and each of their respective
directors, officers, employees and agents and the Trust Fund and hold each
of
them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other
costs, fees and expenses that any of them may sustain arising out of or based
upon the failure by such Paying Agent to deliver any information, report or
certification when and as required under Section 6.12 and Section 6.16(a).
This
indemnification shall survive the termination of this Agreement or the
termination of such Paying Agent hereunder.
19
In
addition, the Paying Agent (if other than the Trustee) (i) may not be an
originator of Underlying Mortgage Loans, the Underlying Master Servicer, an
Underlying 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.
(a) Each
Class of Book-Entry Certificates, upon original issuance, shall be issued in
the
form of one or more typewritten Certificates representing the Book-Entry
Certificates, 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):
(i) the
provisions of this Section 3.09 shall be in full force and effect;
(ii) the
Depositor, 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;
(iii) to
the
extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall control;
and
(iv) the
rights of Certificate Owners shall be exercised only through the Clearing Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(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)
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
20
(ii)
the
Trustee or the Depositor is unable to locate a qualified successor, Certificate
Owners representing beneficial interests aggregating not less than 50% of the
Class Principal Amount of a Class of Book-Entry Certificates identified as
such
to the Trustee by an Officer’s Certificate from the Clearing Agency advise the
Trustee and the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a book-entry system through the Clearing Agency
is no longer in the best interests of the Certificate Owners of a Class of
Book-Entry Certificates, the Trustee shall notify 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 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.
ARTICLE
IV
ADMINISTRATION
OF THE UNDERLYING SECURITY
Section
4.01. Collection
of Payments on Underlying Security; Certificate Account.
(a) The
Trustee shall establish and maintain an account (the “Certificate Account”) in
which the Trustee shall deposit, as soon as practicable after receipt, each
distribution received by the Trustee with respect to the Underlying Security.
The Certificate Account shall be an Eligible Account. If the Trustee shall
not
have received a distribution with respect to the Underlying Security on the
related Underlying Distribution Date, the Trustee shall request such payment
as
promptly as possible and legally permitted and shall, subject to the second
to
last sentence of this paragraph, take such legal action as the holders of at
least 25% of the Voting Rights shall instruct, including the prosecution of
any
claims in connection therewith. For the avoidance of doubt, the Trustee shall
have no obligation to advance any amounts including any payments relating to
distributions or payments on the Underlying Security. The reasonable legal
fees
and expenses incurred by the Trustee in connection with any action taken by
the
Trustee to enforce payment of such distributions will be reimbursable to the
Trustee out of the proceeds of any such action prior to such amounts being
distributed to Certificateholders. 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 Certificateholders that it is not obligated to pursue any such available
remedies unless indemnity satisfactory to the Trustee for its reasonable legal
fees and expenses and against any liability is provided to it by
Certificateholders. In the event any such reasonably satisfactory indemnity
is
provided to the Trustee, the Trustee shall take such action as the Trustee
shall
deem to be appropriate under the circumstances unless directed otherwise by
the
holders of the majority of the Voting Rights.
(b) The
Trustee shall make withdrawals from the Certificate Account only for the
following purposes:
21
(i) to
make
payment to itself, from the Interest Remittance Amount up to the Expense Cap
prior to making distributions pursuant to Section 5.02(b) for any expenses
or
other indemnification amounts owing to the Trustee pursuant to any provision
of
this Agreement;
(ii) to
make
distributions to Certificateholders pursuant to Article V; and
(iii) to
clear
and terminate the Certificate Account pursuant to Section 7.01(c).
(c) The
Trustee shall not invest funds held in the Certificate Account
Section
4.02. No
Exchanges of the Underlying Security.
The
Trustee, as holder of the Underlying Security, shall not, for the term of this
Agreement, exchange the Underlying Security for any other security pursuant
to
the Underlying Exchange Trust Agreement.
Section
4.03. Reports
to Certificateholders.
(a) On
each
Distribution Date, the Trustee shall prepare (based solely on information
contained in the Underlying Distribution Date Statement relating to such
Distribution Date received by it) and shall make available to each
Certificateholder on each Distribution Date, or as soon thereafter as is
practicable, a report (the “Distribution Date Statement”) setting forth the
following information:
(i) the
aggregate amount of the distribution to be made on that Distribution Date to
each Class of Certificates allocable to principal;
(ii) the
aggregate amount of the distribution to be made on that Distribution Date to
each Class of Certificates allocable to interest and the calculation
thereof;
(iii) the
amount, if any, of any distribution to the Class R
Certificate;
(iv) the
aggregate amount of the distributions to be made on that Distribution Date
to
the Certificates from distributions received in respect of the Underlying
Security;
(v) the
Class Principal Amount of each Class of Certificates, to the extent
applicable, as of that Distribution Date after giving effect to payments
allocated to principal reported under item (i) above;
(vi) the
principal balance of the Underlying Security (a) immediately prior to the
related Distribution Date and (b) as of such Distribution Date after giving
effect to the distribution of principal made thereon on the related Underlying
Distribution Date; and
(vii) the
level
of LIBOR for such Distribution Date.
In
addition to the information listed above, for every year in which the Depositor
is subject to Exchange Act reporting with respect to the Certificates, such
Distribution Date Statement shall also include, to the extent that the Trustee
shall have received any such information from the Depositor, the Sponsor or
the
Underlying Master Servicer, as applicable, no later than four Business Days
prior to the related Distribution Date, 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) for as
long as reports on Form 10-D are required to be filed by the Trustee pursuant
to
Section 6.12.
22
The
Trustee shall make such report and the related Underlying Distribution Date
Statement (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.
The Trustee’s internet website shall initially be located at “xxx.xxxxxxx.xxx.”
Assistance in using the website can be obtained by calling the Trustee’s
customer service desk at 1-866-846-4526. Such parties that are unable to use
the
website are entitled to have a paper copy mailed to them via first class mail
by
calling the customer service desk and indicating such. The 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.
(b) Within
90
days after the end of each calendar year, the Trustee will prepare and make
available to any person who at any time during the calendar year was a
Certificateholder of record, a report summarizing the items provided to the
Certificateholders pursuant to items (i) and (ii) of Section 4.03(a) above
on an
annual basis as may be required to enable those Certificateholders to prepare
their federal income tax returns. Such information shall also include the amount
of original issue discount accrued on each Class of Certificates and information
regarding the expenses of the Trust Fund. The Trustee shall be deemed to have
satisfied this requirement if it makes available such information in any other
format permitted by the Code.
(c) The
Trustee shall, to the extent reasonably available, furnish any other information
that is required by the Code and regulations thereunder to be made available
to
Certificateholders. The Depositor or its agents shall, to the extent reasonably
available, provide the Trustee with such information as is necessary for the
Trustee to prepare such reports (and the Trustee may rely solely upon such
information).
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
Section
5.01. Distributions
Generally.
(a) On
each
Distribution Date, provided that the Trustee has received the Underlying
Distribution Date Statement for the related Underlying Distribution Date, and
if
any such Underlying Distribution Date Statement has not been received by the
Trustee, on the Business Day following such receipt (or, if no Underlying
Distribution Date Statement is provided pursuant to the Underlying Agreement,
then provided that the information required for the Trustee to make
distributions hereunder has been otherwise made available to the Trustee),
the
Trustee shall distribute to the Certificateholders of record on the immediately
preceding Record Date, by wire transfer to an account specified in writing
by
such Certificateholders at least five Business Days prior to the preceding
Record Date, or otherwise by check or by such other means of payment as such
Person and the Trustee shall agree, all amounts on deposit in the Certificate
Account on such Distribution Date after making any reimbursements to itself
up
to the Expense Cap pursuant to Section 4.01(b); provided,
however,
that
the Trustee shall not distribute to such Holders (i) any sums due the Trustee
as
provided in Sections 4.01(a) and 6.01(c) and (ii) any amount required to be
withheld from a payment to such Holder pursuant to the Code.
23
(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.
(c) The
Trustee shall not be responsible for any failure of the depository to credit
any
distribution amount to the account of a Certificate Owner on the related
Distribution Date due to the depository receiving funds past any applicable
deadline of the depository for distribution on such date, where such failure
is
the result of the Trustee not receiving distributions on the Underlying Security
in time to meet any such depository deadline; provided,
however,
that in
any such case, such failure of the depository to credit an amount to an account
of a Certificateholder shall not result from the negligence or inadvertence
of
the Trustee.
Section
5.02. Distributions
from the Certificate Account.
(a) On
each
Distribution Date, the Trustee shall calculate each of the Interest Remittance
Amount and the Principal Remittance Amount, in each case for such date. All
amounts on deposit in the Certificate Account on any such Distribution Date
(after giving effect to Section 5.01(a)) shall be distributed as provided in
this Section.
(b) On
each
Distribution Date, the Trustee shall distribute the Interest Remittance Amount
concurrently, on a pro
rata
basis,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
such Classes for such Distribution Date (any shortfall in Current Interest
and
Carryforward Interest to be allocated among such classes in proportion to the
amount of Current Interest and Carryforward Interest that would otherwise be
distributable thereon).
(c) On
each
Distribution Date, the Trustee shall distribute the Principal Remittance Amount
for such date in the following order of priority:
(i) to
the
Class A1 Certificates, until the Class Principal Amount of such Class has been
reduced to zero;
(ii) to
the
Class A2 Certificates, until the Class Principal Amount of such Class has been
reduced to zero; and
(iii) any
remaining amounts to the Class R Certificate.
Section
5.03. Allocation
of Realized Loss Amounts.
If
on any
Distribution Date, after giving effect to all distributions of principal on
such
Distribution Date, there exists a Realized Loss Amount, the Class Principal
Amounts of the Offered Certificates shall be reduced by the amount of any
Realized Loss Amount for such date, in the following order of
priority
(i) to
the
Class A2 Certificates, until the Class Principal Amount of such Class has been
reduced to zero;
(ii) to
the
Class A1 Certificates, until the Class Principal Amount of such Class has been
reduced to zero.
24
ARTICLE
VI
CONCERNING
THE TRUSTEE; EVENTS OF DEFAULT
Section
6.01. Duties
of Trustee.
(a) The
Trustee 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.
(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 on their face 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 Depositor or the Underlying Master Servicer to
the
Trustee pursuant to this Agreement, and shall not be required to recalculate
or
verify the information in any Underlying Distribution Date Statement or any
numerical information furnished to the Trustee pursuant to this Agreement.
Subject to the immediately preceding sentence, if any such resolution,
certificate, statement, opinion, report, document, order or other instrument
is
found not to conform on its face to the form required by this Agreement in
a
material manner the Trustee shall notify the Person providing such resolutions,
certificates, statements, opinions, reports or other documents of the
non-conformity, and if the instrument is not corrected to the Trustee’s
satisfaction, the Trustee will provide notice thereof to the Certificateholders
and will, at the expense of the Trust Fund, which expense shall be reasonable
given the scope and nature of the required action, take such further action
as
directed by the Certificateholders.
(c) The
Trustee shall not have any liability arising out of or in connection with this
Agreement, except for its negligence or willful misconduct. No provision of
this
Agreement shall be construed to relieve the Trustee from liability for its
own
negligent action, its own negligent failure to act or its own willful
misconduct; provided,
however,
that:
(i) 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 Depositor under this Agreement;
(ii) The
Trustee shall not be responsible for any act or omission of the Underlying
Master Servicer, the Depositor or the Seller.
(d) [Reserved].
(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 any the Certificateholders of any Class holding Certificates which
evidence, as to such Class, Percentage Interests aggregating not less than
25%
as to the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred upon the
Trustee under this Agreement.
25
(f) The
Trustee shall not be required to perform services under this Agreement, or
to
expend or risk its own funds or otherwise incur financial liability for the
performance of any of its duties hereunder or the exercise of any of its rights
or powers if there is reasonable ground for believing that the timely payment
of
its fees and expenses or the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it, and none of
the
provisions contained in this Agreement shall in any event require the Trustee
to
perform, or be responsible for the manner of performance of, any of the
obligations of the Depositor under this Agreement.
(g) [Reserved].
(h) The
Trustee, except as otherwise provided herein, shall not have any duty (A) to
see
to any recording, filing, or depositing of this Agreement or any agreement
referred to herein or any financing statement or continuation statement
evidencing a security interest, or to see to the maintenance of any such
recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof, and (B) 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 Certificate Account.
(i) 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.
(j) Notwithstanding
anything in this Agreement to the contrary, neither the Trustee nor any Paying
Agent shall be liable for special, indirect or consequential losses or damages
of any kind whatsoever (including, but not limited to, lost profits), even
if
the Trustee or such Paying Agent, as applicable, has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(k) For
so
long as the Depositor is subject to the Exchange Act reporting with respect
to
the Certificates, the Trustee shall give prior written notice to the Sponsor
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 provided by each such
Subcontractor for
which
the Trustee does not elect to take responsibility for assessing compliance
with
the Servicing Criteria in accordance with Regulation AB Telephone Interpretation
17.06.
(l) The
Paying Agent and the Certificate Registrar shall have the same rights,
protections, immunities and indemnities as are afforded to the Trustee pursuant
to this Article VI.
Section
6.02. Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 6.01:
(a) The
Trustee may request, and may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer’s Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document believed
by
it to be genuine and to have been signed or presented by the proper party or
parties;
(b) 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;
26
(c) 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;
(d) 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 the Holders of at least a majority in Class Principal Amount (or
Percentage Interest) of each Class of Certificates; provided,
however,
that, if
the payment within a reasonable time to the Trustee 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 from the Certificateholders as a condition to proceeding.
The
reasonable expense thereof shall be paid by the party requesting such
investigation and if not reimbursed by the requesting party shall be reimbursed
to the Trustee by the Trust Fund;
(e) 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;
(f) 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;
(g) 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
(h) 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.
The
Trustee makes no representations as to the validity or sufficiency of this
Agreement or the Certificates (other than the certificate of authentication
on
the Certificates), or of the Underlying Security, or any 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 Underlying Security to the Trust Fund by the Depositor
or for the use or application of any funds deposited into the Certificate
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 issued or intended to be issued hereunder. Except
as otherwise provided herein, 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.
27
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 and may transact
banking and trust business with the other parties hereto and their Affiliates
with the same rights it would have if it were not Trustee or such
agent.
Section
6.05. Eligibility
Requirements for Trustee.
The
Trustee hereunder shall at all times be (i) an institution whose accounts are
insured by the FDIC, (ii) a corporation or national banking association,
organized and doing business under the laws of any State or the United States
of
America, authorized under such laws to exercise corporate trust powers, having
a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority and (iii) not an
Affiliate of the Depositor. If such corporation or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for
the
purposes of this Section, the combined capital and surplus of such corporation
or national banking association shall be deemed to be its combined capital
and
surplus as set forth in its most recent report of condition so published. In
addition, the Trustee (i) must be authorized to exercise corporate trust powers
under the laws of its jurisdiction of organization and (ii) must be rated at
least “A/F1” by Fitch, if Fitch is a Rating Agency that has rated the Trustee,
and “A-1” by S&P, if S&P is a Rating Agency that has rated the Trustee,
or the equivalent rating by Xxxxx’x Investors Service, Inc. In case at any time
the Trustee shall cease to be eligible in accordance with provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 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. Upon receiving such notice
of
resignation, the Depositor will promptly appoint a successor trustee, one copy
of which instrument shall be delivered to the resigning Trustee and one copy
to
the successor trustee. 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.
(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 of
its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii) the Trustee shall fail to observe or perform
in any material respect any of the covenants or agreements of the Trustee
contained in this Agreement, including any failure to provide the information,
reports, assessments or attestations required pursuant to Subsection 6.16 (a)
or
6.16 (b) hereof, (iv) a tax is imposed or threatened with respect to the Trust
Fund by any state in which the Trustee or the Trust Fund held by the Trustee
is
located, (v) the continued use of the Trustee would result in a downgrading
of
the rating by any Rating Agency of any Class of Certificates with a rating,
(vi)
the Paying Agent shall fail to provide the information required pursuant to
Sections 3.08, 6.16 (a) and 6.16 (b) hereof or (vii) the Depositor desires
to
replace the Trustee with a successor Trustee, then the Depositor shall remove
the Trustee or the Paying Agent, as applicable, and the Depositor shall appoint
a successor trustee by written instrument, one copy of which instrument shall
be
delivered to the Trustee so removed and one copy each to the successor
trustee.
28
(c) The
Holders of more than 50% of the Class Principal Amount (or Percentage Interest)
of each Class of Certificates may at any time upon 30 days’ written notice to
the Trustee and to 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 and one copy to the
Trustee; the Depositor shall thereupon appoint a successor trustee in accordance
with this Section acceptable to the Depositor.
(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
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 and to its predecessor trustee an
instrument accepting such appointment hereunder, 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. A
predecessor trustee shall transfer to the Trustee or any successor trustee
the
Underlying Security, and shall duly assign, transfer and deliver to the
successor trustee the entire Trust Fund, together with all necessary instruments
of transfer and assignment or other documents properly executed necessary to
effect such transfer and such of the records or copies thereof maintained by
the
predecessor trustee in the administration hereof as may be requested by the
successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement.
(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 of appointment by a successor trustee as provided in this Section,
the predecessor trustee shall mail notice of the succession of such trustee
to
all Holders of Certificates at their addresses as shown in the Certificate
Register and to any Rating Agency. The expenses of such mailing shall be borne
by the predecessor trustee.
(d) Upon
the
resignation or removal of the Trustee pursuant to this Section 6.06, the Trustee
shall deliver the amounts held in its possession for the benefit of the
Certificateholders to the successor trustee upon the appointment of the
successor trustee.
Section
6.08. Merger
or Consolidation of Trustee.
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. Unless
and
until a Form 15 suspension notice shall have been filed, as a condition to
a
succession to the Trustee under this Agreement by any Person (i) into which
the
Trustee may be merged or consolidated, or (ii) which may be appointed as a
successor to the Trustee, the Trustee shall notify the Sponsor and the
Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, of such succession or appointment and shall furnish
to the Sponsor and the Depositor in writing and in form and substance reasonably
satisfactory to the Sponsor and the Depositor, all information reasonably
necessary for the Trustee to accurately and timely report, pursuant to Section
6.12, the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
29
Section
6.09. 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.
(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 6.09, 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 6.09.
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
6.11.
Section
6.10. Indemnification
of Trustee.
The
Trustee and its directors, officers, employees and agents shall be entitled
to
indemnification from the Trust Fund for any loss, liability or expense incurred
in connection with any legal proceeding or incurred without negligence or
willful misconduct on its part, arising out of, or in connection with, the
acceptance or administration of the trusts created hereunder or in connection
with the performance of its duties hereunder and under the Underlying Trust
Agreement, including any applicable fees and expenses payable pursuant to
Section 6.11 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:
30
(i) with
respect to any such claim, the Trustee shall have given the Depositor and the
Holders written notice thereof promptly after a Responsible Officer of the
Trustee shall have knowledge thereof provided
that the
failure to provide such prompt written notice shall not affect the Trustee’s
right to indemnification hereunder;
(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 6.10, 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
or delayed.
All
sums
due the Trustee pursuant to the foregoing indemnity and pursuant to Section
6.11
shall be reimbursable to the Trustee from the Interest Remittance Amount, up
to
the Expense Cap. Notwithstanding any provisions in this Agreement to the
contrary, in the event that (i) the Interest Remittance Amount for any
Distribution Date is insufficient to reimburse the Trustee for all outstanding
amounts required to be reimbursed pursuant to this Section or Section 6.11,
then
the Trustee shall be entitled to reimbursement (subject to the Expense Cap)
of
such outstanding amounts on one or more subsequent Distribution Dates until
such
amounts have been fully reimbursed and (ii) any outstanding amounts required
to
be reimbursed pursuant to this Section or Section 6.11 cannot be reimbursed
on a
Distribution Date as a result of the application of the Expense Cap, then the
Trustee shall be entitled to reimbursement of such amounts in one or more
subsequent calendar years, subject to the Expense Cap for each such subsequent
calendar year, until such amounts have been fully reimbursed to the
Trustee.
The
provisions of this Section 6.10 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
6.11. Fees
and Expenses of Trustee.
As
compensation for all services rendered by it hereunder (which shall not be
limited by any provision of law in regard to the compensation of a trustee
of an
express trust) the Trustee shall be entitled to receive a one-time, up front
fee
as agreed upon with the Sponsor (receipt of which the Trustee hereby
acknowledges by its execution of this Agreement). The Trustee shall be entitled
to 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 and
any
amounts described in Section 10.01 to which the Trustee is entitled as provided
therein) from Interest Remittance Amounts as provided in this Agreement, except
for expenses, disbursements and advances that either (i) do not constitute
“unanticipated expenses” within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii) or (ii) arise from its negligence, bad faith or willful
misconduct. The provisions of this Section 6.11 shall survive the termination
of
this Agreement and the resignation or removal of the Trustee.
Section
6.12. Preparation
of Tax Returns and Other Reports.
(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, all in accordance with Article X hereof. If the Trustee determines
that
a state tax return or other return is required, then, at its sole expense,
the
Trustee shall prepare and file such state income tax returns and such other
returns as may be required by applicable law relating to the Trust Fund, and,
if
required by state law, and shall file any other documents to the extent required
by applicable state tax law (to the extent such documents are in the Trustee’s
possession). The Trustee shall forward copies to the Depositor of all such
returns and supplemental tax information and such other information within
the
Trustee’s control as the Depositor may reasonably request in writing. The
Trustee shall furnish to each Certificateholder, such forms and such information
within the control of the Trustee as are required by the Code and the REMIC
Provisions to be furnished to them (other than any Form 1099s).
31
(b) [Reserved].
(c) The
Trustee shall prepare and file with the Internal Revenue Service (“IRS”), on
behalf of the Trust Fund and the REMIC specified in the Preliminary Statement,
an application for an employer identification number on IRS Form SS-4 or by
any
other acceptable method. The Trustee shall also file a Form 8811 as required.
The Trustee, upon receipt from the IRS of the Notice of Taxpayer Identification
Number Assigned, shall upon request promptly forward a copy of such notice
to
the Depositor. The Trustee shall have no obligation to verify the information
in
any Form 8811 or Form SS-4 filing.
(d) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, the Trustee shall, in accordance with industry standards
and the rules of the Commission as in effect from time to time (the “Rules”),
prepare and file with the Commission via the Electronic Data Gathering and
Retrieval System (“XXXXX”), the reports listed in subsections (e) through (g) of
this Section 6.12 in respect of the Trust Fund as and to the extent required
under the Exchange Act.
(e) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Trustee shall prepare and file on behalf of the Trust Fund
any Form 10-D required by the Exchange Act, in form and substance as required
by
the Exchange Act. The Trustee shall file each Form 10-D with a copy of the
related Distribution Date Statement. Any disclosure in addition to the
Distribution Date Statement that is required to be included on Form 10-D
(“Additional Form 10-D Disclosure”) shall be determined and prepared by and at
the direction of the Depositor pursuant to the following paragraph and the
Trustee will have no duty or liability for any failure hereunder to determine
or
prepare any Additional Form 10-D Disclosure, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit G-1 hereto, within five calendar days after the related
Distribution Date, (A) certain parties to the transaction contemplated hereby
shall be required to provide to the Trustee and the Depositor, to the extent
known by a responsible officer (or with respect to the Trustee, Responsible
Officer) thereof, in XXXXX-compatible form (which may be Word or Excel documents
easily convertible to XXXXX format), or in such other form as otherwise agreed
upon by the Trustee and such party, the form and substance of any Additional
Form 10-D Disclosure, if applicable, and include with such Additional Form
10-D
Disclosure Notification in the form attached hereto as Exhibit G-4, and the
Depositor shall be required to provide to the Trustee any such information
relating to the Underlying Trust Fund, and (B) the Depositor will approve,
as to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Sponsor will be responsible
for any reasonable fees and expenses assessed or incurred by the Trustee in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
32
(iii) After
preparing the Form 10-D, the Trustee shall forward electronically a copy of
the
Form 10-D to the Exchange Act Signing Party for review and approval. The Trustee
will make available to the Exchange Act Signing Party the monthly statement
to
certificateholders containing the information with respect to exchanges required
to be included in such report for each Distribution Date and the Exchange Act
Signing Party shall have the right to ask the Trustee reasonable questions
regarding any information reported in a certificateholder statement regarding
any exchange. The Exchange Act Signing Party shall have the right to rely on
any
such information provided to it by the Trustee. No later than two Business
Days
prior to the 15th
calendar
day after the related Distribution Date, a duly authorized representative of
the
Exchange Act Signing Party shall sign the Form 10-D and return an electronic
or
fax copy of such signed Form 10-D (with an original executed hard copy to follow
by overnight mail) to the 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 (h)(ii) of this Section 6.12. Promptly (but
no later than one Business Day) after the deadline for filing such report with
the Commission, the Trustee will make available on its internet website a final
executed copy of each Form 10-D prepared and filed by the Trustee. Each party
to
this Agreement acknowledges that the performance by the Trustee of its duties
under this Section 6.12(e) 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 6.12(e). 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, arrange for execution or file such Form 10-D, not resulting from
its
own negligence, bad faith or willful misconduct.
(iv) Form
10-D
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of filing of each report
on Form 10-D with respect to the Trust Fund, the Depositor shall be deemed
to
represent to the Trustee that as of such date the Depositor has filed all such
required reports during the preceding 12 months and that it has been subject
to
such filing requirement for the past 90 days. The Depositor shall notify the
Trustee in writing, no later than the fifth calendar day after the related
Distribution Date with respect to the filing of a report on Form 10-D if the
answer to the questions should be “no.” The Trustee shall be entitled to rely on
such representations in preparing, executing and/or filing any such
report.
(f) Reports
Filed on Form 10-K.
(i) Within
90
days after the end of each fiscal year of the Trust Fund for which the Trust
Fund is subject to Exchange Act reporting requirements 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 2009, the Trustee shall prepare and file on behalf
of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. To facilitate the Trustee’s preparation of the Form 10-K, the Depositor
shall provide to the Trustee, no later than 30 days prior to the 10-K Filing
Deadline, a template of the Form 10-K in an Xxxxx-compatible format. Each such
Form 10-K shall include the following items, in each case to the extent they
have been delivered to the Trustee within the applicable time frames set forth
in this Agreement, (A) an annual compliance statement for each Underlying
Servicer and the Underlying Master Servicer, as described under Section 9.06
of
the Underlying Trust Agreement and in each Underlying Servicing Agreement,
(B)(I) the annual reports on assessment of compliance with servicing criteria
for each Underlying Servicer, the Underlying Master Servicer, the Underlying
Custodians, any Servicing Function Participant, the Paying Agent (if other
than
the Trustee) and the Trustee (each, a “Reporting Servicer”), as described under
Section 6.16(a) hereof and under Section 9.05(a) of the Underlying Trust
Agreement and in each Underlying Servicing Agreement and Underlying Custodial
Agreement, and (II) if any Reporting Servicer’s report on assessment of
compliance with servicing criteria described under Section 6.16(a) hereof and
under Section 9.05(a) of the Underlying Trust Agreement or in any Underlying
Servicing Agreement or Underlying Custodial Agreement identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any Reporting Servicer’s report on assessment of compliance
with servicing criteria described under Section 6.16(a) hereof and under Section
9.05(a) of the Underlying Trust Agreement or in any Underlying Servicing
Agreement or Underlying Custodial Agreement is not included as an exhibit to
such Form 10-K, disclosure that such report is not included and an explanation
why such report is not included, (C)(I) the registered public accounting firm
attestation report for each Reporting Servicer, as described under Section
6.16(a) hereof and under Section 9.05(a) of the Underlying Trust Agreement
and
in each Underlying Servicing Agreement and Underlying Custodial Agreement and
(II) if any registered public accounting firm attestation report described
under
Section 6.16(a) hereof and under Section 9.05(a) of the Underlying Trust
Agreement or in any Underlying Servicing Agreement or Underlying Custodial
Agreement identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such registered public
accounting firm attestation report is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, and (D) a Xxxxxxxx-Xxxxx Certification. Any disclosure
or information in addition to (A) through (D) above that is required to be
included on Form 10-K (“Additional Form 10-K Disclosure”) shall be determined
and prepared by and at the direction of the Depositor pursuant to the following
paragraph and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure, except
as
set forth in the next paragraph.
33
(ii) As
set
forth on Exhibit G-2 hereto, no later than March 15 of each year that the Trust
Fund is subject to the Exchange Act reporting requirements, commencing in 2009,
(A) certain parties to the transaction contemplated hereby shall be required
to
provide to the Trustee and the Depositor, to the extent known by a responsible
officer (or with respect to the Trustee, Responsible Officer) thereof, in
XXXXX-compatible form (which may be Word or Excel documents easily convertible
to XXXXX format), or in such other form as otherwise agreed upon by the Trustee
and such party, the form and substance of any Additional Form 10-K Disclosure,
if applicable, and include with such Additional Form 10-K Disclosure, an
Additional Disclosure Notification in the form attached hereto as Exhibit G-4,
and the Depositor shall be required to provide to the Trustee any such
information relating to the Underlying Trust Fund, and (B) the Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Trustee
has
no duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit G-2 of their duties under this paragraph or
proactively solicit or procure from such parties any Form 10-K Disclosure
Information. The Sponsor will be responsible for any reasonable fees and
expenses assessed or incurred by the Trustee in connection with including any
Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph.
(iii) After
preparing the Form 10-K, the Trustee shall forward electronically a copy of
the
Form 10-K to the Exchange Act Signing Party 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 duly authorized representative 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 (h) of this Section 6.12. Promptly (but
no
later than one Business Day) after the deadline for filing such report with
the
Commission, the Trustee will make available on its internet website a final
executed copy of each Form 10-K prepared and filed by the Trustee. The parties
to this Agreement acknowledge that the performance by the Trustee of its duties
under this Section 6.12(f) related to the timely preparation and filing of
Form
10-K is contingent upon such parties (and any Servicing Function Participant)
strictly observing all applicable deadlines in the performance of their duties
under this Section 6.12(f), Section 6.16(a) and Section 6.16(b) hereof, and
in
Section 9.05(a), Section 9.05(b) and Section 9.06 of the Underlying Trust
Agreement. 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.
34
(iv) Each
Form
10-K shall include the Xxxxxxxx-Xxxxx Certification. The Trustee and the Paying
Agent (if other than the Trustee) shall, and the Trustee and the Paying Agent
(if other than the Trustee) shall cause any Servicing Function Participant
engaged by it to provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the “Certifying Person”), by March 15 of each year in which the
Trust Fund is subject to the reporting requirements of the Exchange Act (each,
a
“Back-Up Certification”), in the form attached hereto as Exhibit H (or, in the
case of (x) the Paying Agent (if other than the Trustee), such other form as
agreed to between the Paying Agent and the Exchange Act Signing Party, upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification Parties”) can reasonably rely. The
senior officer of the Exchange Act Signing Party shall serve as the Certifying
Person on behalf of the Trust Fund. In the event the Trustee, the Paying Agent
(if other than the Trustee) or any Servicing Function Participant engaged by
such parties is terminated or resigns pursuant to the terms of this Agreement,
such party or Servicing Function Participant shall provide a Back-Up
Certification to the Certifying Person pursuant to this Section 6.12(e)(iv)
with
respect to the period of time it was subject to this Agreement.
(v) Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Fund for
any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal of
such
Person.
(vi) Form
10-K
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of filing of each report
on Form 10-K with respect to the Trust Fund, the Depositor shall be deemed
to
represent to the Trustee that as of such date the Depositor has filed all such
required reports during the preceding 12 months and that it has been subject
to
such filing requirement for the past 90 days. The Depositor shall notify the
Trustee in writing, no later than March 15th
with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no.” The Trustee shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
35
(g) 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”), and if requested by the Depositor,
the Trustee shall prepare and file on behalf of the Trust Fund any Form 8-K,
as
required by the Exchange Act, provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the Trustee will have no
duty
or liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit G-3 hereto, for so long as the Trust Fund is subject to the
Exchange Act reporting requirements, no later than Noon New York City time
on
the 2nd Business Day after the occurrence of a Reportable Event (A) certain
parties to the transaction contemplated hereby shall be required to provide
to
the Trustee and the Depositor, to the extent known by a responsible officer
thereof (or, with respect to the Trustee, a Responsible Officer thereof), in
XXXXX-compatible form (which may be Word or Excel documents easily convertible
to XXXXX format), or in such other form as otherwise agreed upon by the Trustee
and such party, the form and substance of any Form 8-K Disclosure Information,
if applicable, and include with such Form 8-K Disclosure Information, an
Additional Disclosure Notification in the form attached hereto as Exhibit G-4,
and the Depositor shall be required to provide to the Trustee any such
information relating to the Underlying Trust Fund, and (B) the Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Form 8-K Disclosure Information. The Trustee has no duty under
this Agreement to monitor or enforce the performance by the parties listed
on
Exhibit G-3 of their duties under this paragraph or proactively solicit or
procure from such parties any Form 8-K Disclosure Information. The Sponsor
will
be responsible for any reasonable fees and expenses assessed or incurred by
the
Trustee in connection with including any Form 8-K Disclosure Information on
Form
8-K pursuant to this paragraph.
(iii) After
preparing the Form 8-K, the Trustee shall forward electronically, no later
than
Noon New York City time on the 3rd
Business
Day after the Reportable Event, a copy of the Form 8-K to the Exchange Act
Signing Party for review and approval. No later than Noon 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) to the Trustee. 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 (h) of this Section 6.12. Promptly (but no later than one
Business Day) after the deadline for filing such Form with the Commission,
the
Trustee will make available on its internet website a final executed copy of
each Form 8-K prepared and filed by it pursuant to this Section 6.12(g). The
parties to this Agreement acknowledge that the performance by the Trustee of
its
duties under this Section 6.12(g) 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 6.12(g). 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, arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct.
36
(h) Suspension
of Reporting Obligation; Amendments; Late Filings.
(i) On
or
before January 30th
of the
first year in which the Trustee is able to do so under applicable law, unless
otherwise directed by the Depositor, 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.
(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 promptly
notify the Depositor. In the case of Form 10-D and 10-K, the parties to this
Agreement will cooperate to prepare and file a Form 12b-25 and a 10-D/A and
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 with respect to an additional
disclosure item, the Trustee will notify the Depositor and any applicable party
affected thereby and such parties will cooperate to prepare any necessary 8-K/A,
10-D/A or 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D
or
10-K shall be signed by a senior officer or a duly authorized representative,
as
applicable, of the Exchange Act Signing Party. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
6.12(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.
(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.
Section
6.13. No
Merger.
The
Trustee shall not cause or otherwise knowingly permit the assets of the Trust
Fund to be merged or consolidated with any other entity, except as a result
of a
final judicial determination.
37
Section
6.14. Indemnification
by the Trustee and Paying Agent.
The
Trustee (including in its capacity as Paying Agent) and any Paying Agent other
than the Trustee each agrees to indemnify the Depositor and its directors,
officers, employees and agents and the Trust Fund and hold each of them harmless
from and against any losses, damages, penalties, fines, forfeitures, legal
fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon the
engagement by it of any Subcontractor in violation of Section 6.01(k) or any
failure by it to deliver any assessment of compliance, information, report
or
certification with respect to the Trustee when and as required under Sections
6.12 or 6.16(a).
Section
6.15. Compliance
with Regulation AB.
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01
and
6.12 of this Agreement is to facilitate compliance by 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 Depositor or
the
Trustee for delivery of additional or different information, to the extent
such
information is available or reasonably attainable within such time frame as
may
be requested, as the Sponsor, the Depositor or the Trustee may determine in
good
faith is necessary to comply with the provisions of Regulation AB.
Section
6.16. Assessment
of Compliance and Attestation Reports.
(a) Assessment
of Compliance
(i) By
March
15 of each year, commencing in March 2009, the Paying Agent (if other than
the
Trustee) and the Trustee, each at its own expense, shall furnish, and shall
cause any Servicing Function Participant engaged by it to furnish, each at
its
own expense, to the Sponsor, the Depositor 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 6.12(f), 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. If the Trustee and the Paying Agent are the same party, the Relevant
Servicing Criteria of the Paying Agent shall be included in the Trustee’s
report.
(ii) When
the
Paying Agent (if other than the Trustee) and the Trustee (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 6.16) of each Servicing Function
Participant engaged by it and shall indicate to the Trustee what Relevant
Servicing Criteria will be addressed in any such reports prepared by any such
Servicing Function Participant.
38
(iii) Promptly
after receipt of each report on assessment of compliance, the Trustee shall
confirm that the assessments, taken as a whole, address all applicable Servicing
Criteria and taken individually address the Relevant Servicing Criteria (and
disclose the inapplicability of the Servicing Criteria not determined to be
Relevant Criteria) for each party as set forth on Exhibit I, and shall notify
the Depositor of any exceptions. By way of clarification and for the avoidance
of doubt, it is acknowledged that the Trustee shall rely exclusively on Exhibit
I to determine such applicable Servicing Criteria and Relevant Servicing
Criteria, as the case may be, and shall not otherwise be reporting on the
content of or sufficiency of such assessments.
(b) Attestation
Reports
(i) By
March
15 of each year, commencing in March 2009, the Paying Agent (if other than
the
Trustee) and the Trustee, each at its own expense, shall cause, and each such
party shall cause any Servicing Function Participant engaged by it to cause,
each at its own expense, a registered public accounting firm (which may also
render other services to the Paying Agent and the Trustee, as the case may
be)
that is a member of the American Institute of Certified Public Accountants
to
furnish a report to the Sponsor, the Depositor 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 PCAOB, it is expressing an opinion as
to
whether such party’s compliance with the Relevant Servicing Criteria was fairly
stated in all material respects, or it cannot express an overall opinion
regarding such party’s assessment of compliance with the Relevant Servicing
Criteria. If the Trustee and the Paying Agent are the same party, the
attestation report caused to be furnished by the Trustee shall also address
the
Relevant Servicing Criteria of the Paying Agent. 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 Paying Agent, the Trustee or any Servicing
Function Participant engaged by such parties, the Trustee shall confirm that
each assessment submitted pursuant subsection (a) of this Section 6.16 is
coupled with an attestation meeting the requirements of this Section and notify
the Depositor of any exceptions.
(c) The
Trustee’s and the Paying Agent’s obligation to provide assessments of compliance
and attestations under this Section 6.16 shall terminate upon the filing of
a
Form 15 suspension notice on behalf of the Trust Fund.
Section
6.17. Limitation
on Liability of the Depositor and Others.
(a) None
of
the Seller or the Depositor or any of the directors, officers, employees or
agents of any of them shall be under any liability to the Trustee or the
Certificateholders for any action taken or for refraining from the taking of
any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided,
however,
that
this provision shall not protect the 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 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 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.
39
ARTICLE
VII
PURCHASE
AND TERMINATION
OF
THE
TRUST FUND
Section
7.01. Termination
of Trust Fund Upon Distribution to Certificateholders.
(a) This
Agreement and the respective obligations and responsibilities of the Depositor
and the Trustee created hereby shall terminate upon the distribution to
Certificateholders and the Trustee of the final payment made on the Underlying
Security or, in the event that the Underlying Security is repurchased pursuant
to Section 2.01, distribution of the amount specified in such Section 2.01;
provided,
however,
that in
no event shall the trust created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador of the United States to the Court of St. James’s
living on the date hereof.
(b) The
Trustee shall notify the Certificateholders of the Distribution Date upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation. Such notice shall be given
promptly by the Trustee by letter to Certificateholders and the Rating Agencies
mailed not later than three Business Days following the earlier of (a) the
receipt of notice by the Trustee of the final Underlying Distribution Date
for
the Underlying Security and (b) the final distribution on the Underlying
Security, specifying (i) the Distribution Date as of which the final
distribution on the Certificates will be made upon presentation and surrender
of
Certificates at the office of the Trustee therein designated, (ii) the amount
of
any such final distribution and (iii) that the Record Date otherwise applicable
to such Distribution Date is not applicable, distributions being made only
upon
presentation and surrender of the Certificates at the office of the Trustee
therein specified. Upon presentation and surrender of a Certificate, the Trustee
shall cause to be distributed to the Holder thereof the amount due and payable
on such Certificate on the Final Distribution Date as provided in Article
V.
(c) Upon
the
termination of the Trust Fund pursuant to this Section 7.01, the duties of
the
Certificate Registrar with respect to the Certificates shall terminate and
the
Trustee shall terminate 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.
Section
7.02. Failure
of Certificateholders to Surrender Certificates.
In
the
event that any of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the Final Distribution Date, the
Trustee shall give a written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within one year after such notice all the Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates,
and
the cost thereof shall be paid out of the funds and other assets that remain
subject to the Trust Fund.
40
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 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 the Holders of Certificates evidencing
not less than 25% of the Class Principal 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 to the
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.
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.
41
(c) Every
Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving
and holding a Certificate, agrees with the Depositor, the Certificate Registrar
and the Trustee that none of the Depositor, 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. 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, if made in the manner provided in this Section. The Trustee shall
promptly notify the others of receipt of any such instrument by it, and shall
promptly forward a copy of such instrument to the others.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
or
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by an
officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the individual executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The
ownership of Certificates (whether or not such Certificates 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 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 shall bind every future Holder of the
same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
in
respect of anything done, omitted or suffered to be done by the Trustee in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
42
ARTICLE
IX
[RESERVED.]
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 the REMIC. 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 election,
each of the Certificates, other than the Class R Certificate, is hereby
designated as a regular interest in the REMIC. In addition, the Class R
Certificate is hereby designated as the sole residual interest in the
REMIC.
(b) 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 6.12 and this Section 10.01.
(c) 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.
(d) 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 Certificateholders such information or reports as are required
by the Code or the REMIC Provisions.
43
If,
after
the Closing Date, as a result of any changes to the Code, the REMIC Provisions,
or other compliance guidance issued by the Internal Revenue Service or any
state
or local taxing authority, the Trustee shall have additional duties or
obligations pursuant to this subsection (d), the Trustee shall be entitled
to
receive reasonable compensation from the Trust Fund for the performance of
its
duties under this subsection (d); provided,
however,
that
such compensation shall not exceed $5,000 per year.
(e) The
Trustee and the Holders of Certificates shall take any action within their
respective control and scope of its 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 or the Holder of any Residual
Certificate shall take any action within their 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 has 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, or its 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 has advised it in writing
that an Adverse REMIC Event could occur.
(f) 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 Certificate Account, and shall reduce amounts otherwise
payable to holders of regular interests in such REMIC, as the case may
be.
(g) 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.
(h) 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.
(i) The
Trustee shall not enter into any arrangement by which any REMIC will receive
a
fee or other compensation for services.
(j) Upon
the
request of any Rating Agency, the Trustee shall deliver to such Rating Agency
an
Officer’s Certificate stating, without regard to any actions taken by any party
other than the Trustee, the Trustee’s compliance with the provisions of this
Section 10.01 applicable to it.
Section
10.02. Prohibited
Transactions and Activities.
Neither
the Depositor nor the Trustee shall sell or dispose of the Underlying Security,
except in a disposition pursuant to (i) the bankruptcy of the Trust Fund or
(ii)
the termination of each REMIC pursuant to Article VII of this Agreement, nor
acquire any assets for any REMIC, 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 or disposition) that such disposition,
acquisition or acceptance will not (a) affect adversely the status of such
REMIC
as a REMIC or of the Certificates, other than the Class R Certificate, as the
regular interests therein, (b) affect the distribution of interest or principal
on the Certificates, (c) result in the encumbrance of the assets transferred
or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (d) cause such REMIC to be subject to a tax on prohibited transactions or
prohibited contributions pursuant to the REMIC Provisions.
44
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 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).
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Binding
Nature of Agreement; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section
11.02. Entire
Agreement.
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section
11.03. Amendment.
(a) This
Agreement may be amended from time to time by the Depositor 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 the Prospectus or in the Underlying
Prospectus; or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein, (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).
45
(b) This
Agreement may also be amended from time to time by the Depositor 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
cause an Adverse REMIC Event; and provided, further, that no such amendment
may
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Underlying Security which are required to be distributed on any
Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount (or Percentage
Interest) of Certificates of each Class, the Holders of which are required
to
consent to any such amendment without the consent of the Holders of 100% of
the
Class Principal Amount (or Percentage Interest) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to “Holder” or
“Holders” shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(c) 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.
(d) 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.
(e) Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor and the Trustee to the extent necessary,
in
the judgment of the Depositor and its counsel, to comply with the
Rules.
(f) Prior
to
the execution of any amendment to this Agreement, the Trustee shall be entitled
to receive and rely upon an Opinion of Counsel addressed to it stating that
the
execution of such amendment is authorized or permitted by this Agreement. The
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Trustee’s own rights, duties or immunities under this
Agreement.
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, Certificates owned by
the
Depositor, the Trustee or any Affiliates thereof are not to be counted so long
as such Certificates are owned by the Depositor, the Trustee or any Affiliates
thereof.
46
Section
11.05. Provision
of Information.
(a) 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 or Form 10-K filed
by
it with the Securities and Exchange Commission pursuant to Section 6.12(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.
(b) 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.
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, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention:
Mortgage Finance, LMT 2008-3
and (b)
in the case of the Trustee, its Corporate Trust Office, 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.
47
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.
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; and
(ii) 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 Fitch, to:
Fitch
Ratings
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
(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.
48
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.
Section
11.14. Action
Under and Conflicts With Underlying Trust Agreement.
Subject
to the terms hereof, in the event that there shall be any matters arising under
the Underlying Trust Agreement which require the vote or direction of the
Holders of the Underlying Certificates, the Trustee, as Holder of the Underlying
Security, shall vote the Underlying Security in accordance with instructions
received from holders of 66 2/3% of the Voting Rights otherwise allocable to
each Class of Certificates, other than the Class R Certificate. In the absence
of any such instructions, the Trustee shall not vote.
49
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/ Xxxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxx
|
|
|
Title:
Senior Vice President
|
|
|
XXXXX
FARGO BANK, N.A.,
|
|
|
as
Trustee
|
|
|
By:
/s/ Xxxxxx Xxxx
|
|
|
Name:
Xxxxxx Xxxx
|
|
|
Title:
Vice President
|
EXHIBIT
A
FORMS
OF
CERTIFICATES
X-0
XXXXXXX
X-0
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 Certificate
Registrar an opinion of counsel satisfactory to the Certificate Registrar,
and
upon which the Trustee, the Certificate Registrar 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 Certificate Registrar or the Depositor 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”) dated as of May 1, 2008, between Structured Asset Securities
Corporation, as Depositor and Xxxxx Fargo Bank, N.A., as Trustee, no transfer
of
a Residual Certificate shall be permitted to be made to any person unless the
Depositor and the Certificate Registrar have received a certificate from such
transferee containing the representations in paragraphs 3, 4 and 5
hereof.
6. That
the
Purchaser does not hold REMIC residual securities as nominee to facilitate
the
clearance and settlement of such securities through electronic book-entry
changes in accounts of participating organizations (such entity, a “Book-Entry
Nominee”).
B-1-1
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 Certificate Registrar
a written statement substantially in the form of Exhibit D 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 Certificate
Registrar 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.
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.
B-1-2
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
2008-3
|
_______________________
(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:
B-2-1
EXHIBIT
C
SCHEDULE
OF UNDERLYING SECURITIES
|
Certificate
Designation
|
Class
|
Approximate
Outstanding Principal Amount ($) (as of May 30,
2008)
|
Percentage
Interest (%)
|
||||
|
1
|
Xxxxxx
Mortgage Trust, Series 2007-1, Mortgage Pass-Through
Certificates
|
2A-1
|
$252,280,617.00
|
100
|
C-1
EXHIBIT
D
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 2008-3 (the “Restricted
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 Restricted 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 Restricted Certificates within two years of the later of
the date
of original issuance of the Restricted Certificates or the last day
on
which such Restricted 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 May 1, 2008, (the “Trust Agreement”), between Structured Asset
Securities Corporation, as Depositor and Xxxxx Fargo Bank, N.A.,
as
Trustee, 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 Restricted Certificates from us a notice advising such purchaser
that
resales of the Restricted Certificates are restricted as stated
herein.
|
|
(2)
|
We
understand that, in connection with any proposed resale of any Restricted
Certificates to an Institutional Accredited Investor, we will be
required
to furnish to the Certificate Registrar 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 Restricted Certificates purchased by
us will
bear a legend to the foregoing
effect.
|
|
(3)
|
We
are acquiring the Restricted 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 Restricted 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
Restricted 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.
|
D-1
|
(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.
D-2
The
Certificate Registrar 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:
|
D-3
EXHIBIT
E
FORM
OF
ERISA TRANSFER AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of (the “Investor”), a [corporation
duly organized] and existing under the laws of __________, on behalf of which
he
makes this affidavit.
2. In
the
case of an ERISA-Restricted Certificate, the Investor either (x) is not, and
on
___________ [date of transfer] will not be, an employee benefit plan or other
retirement arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the “Code”), (collectively, a “Plan”) or a
person acting on behalf of any such Plan or investing the assets of any such
Plan; (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 Certificate Registrar an opinion of
counsel satisfactory to the Certificate Registrar, and upon which the Trustee,
the Certificate Registrar 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
Certificate Registrar 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. The
Investor hereby acknowledges that under the terms of the Trust Agreement dated
as of May 1, 2008, (the “Agreement”), between Structured Asset Securities
Corporation, as Depositor and Xxxxx Fargo Bank, N.A., as Trustee, no transfer
of
the ERISA-Restricted Certificates shall be permitted to be made to any person
unless the Depositor and Certificate Registrar have received a certificate
from
such transferee in the form hereof.
E-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__.
E-2
EXHIBIT
F
TRANSACTION
PARTIES
Depositor: Structured
Asset Securities Corporation
Trustee:
Xxxxx
Fargo Bank, N.A.
Sponsor
and Seller: Xxxxxx Brothers Holdings, Inc.
F-1
EXHIBIT
G-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the Distribution Date Statement
|
Trustee
|
|
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee
and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any event of default (after expiration of any grace
period and provision of any required notice)
|
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
G-1-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Trustee
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
_______________________
G-1-2
EXHIBIT
G-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Informa
tion
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
G-2-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee
and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
|
|
▪
Trustee
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
|
Depositor
as to (a)
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
G-2-2
EXHIBIT
G-3
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Significant Obligor
|
Depositor
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Depositor
Trustee
|
G-3-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Trust Agreement.
|
Trustee
and Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Trustee
Requires
disclosure of any removal, replacement, substitution or addition of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Depositor/
Trustee
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Successor
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Trustee
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
G-3-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
G-3-3
EXHIBIT
G-4
ADDITIONAL
DISCLOSURE NOTIFICATION
Xxxxx
Fargo Bank, N.A., as Trustee
X.X.
Xxx
00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Service Manager, LMT 2008-3 - SEC Report Processing
(or
in
the case of overnight deliveries,
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Service Manager, LMT 2008-3 - SEC Report Processing)
RE:
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Trust Agreement, dated as of
May
1, 2008,
by and
between Structured Asset Securities Corporation, as Depositor and Xxxxx
Fargo Bank, N.A.,
as
Trustee, the undersigned, as
[ ], hereby notifies
you that certain events have come to our attention that [will] [may] need to
be
disclosed on Form [10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
List
of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any
inquiries related to this notification should be directed to
[ ],
phone number: [ ]; email address:
[ ].
[NAME
OF
PARTY],
as
[role]
By:
Name:
Title:
G-4-1
|
cc:
|
Structured
Asset Securities Corporation
|
|
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attention:
Mortgage Finance, LMT 2008-3
|
G-4-2
EXHIBIT
H
FORM
OF
BACK-UP CERTIFICATION
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LMT 2008-3
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Re:
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Xxxxxx
Mortgage Trust
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Mortgage
Pass-Through Certificates, Series
2008-3
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The
Trustee hereby certifies to the Depositor and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
(1) I
have
reviewed the annual report on Form 10-K for the fiscal year [____] (the “Annual
Report”), and all reports on Form 10-D required to be filed in respect of period
covered by the Annual Report (collectively with the Annual Report, the
“Reports”), of the Trust;
(2) To
my
knowledge, (a)
the
Reports, taken as a whole, do not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made,
in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by the Annual Report,
and (b)
the Trustee’s assessment of compliance and related attestation report referred
to below, taken as a whole, do not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made,
in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by such assessment of compliance and
attestation report;
(3) To
my
knowledge, the distribution information required to be provided by the Trustee
under the Trust Agreement for inclusion in the Reports is included in the
Reports;
(4) I
am
responsible for reviewing the activities performed by the Trustee under the
Trust Agreement, and based on my knowledge and the compliance review conducted
in preparing the assessment of compliance of the Trustee required by the Trust
Agreement, and except as disclosed in the Reports, the Trustee has fulfilled
its
obligations under the Trust Agreement in all material respects; and
(5) The
report on assessment of compliance with servicing criteria applicable to the
Trustee for asset-backed securities of the Trustee and each Subcontractor
utilized by the Trustee and related attestation report on assessment of
compliance with servicing criteria applicable to it required to be included
in
the Annual Report in accordance with Item 1122 of Regulation AB and Exchange
Act
Rules 13a-18 and 15d-18 has been included as an exhibit to the Annual Report.
Any material instances of non-compliance are described in such report and have
been disclosed in the Annual Report.
In
giving
the certifications above, the Trustee has reasonably relied on information
provided to it by the following unaffiliated parties:
[_____________]
Date:
X-0
Xxxxx
Xxxxx Xxxx, X.X.,
as
Trustee
[Signature]
[Title]
H-2
EXHIBIT
I
FORM
OF
CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT OF COMPLIANCE
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Reg
AB Reference
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Servicing
Criteria
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Paying
Agent
(including
the Trustee if acting as Paying Agent)
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Trustee
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General Servicing
Considerations
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1122(d)(1)(i)
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Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
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1122(d)(1)(ii)
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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.
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1122(d)(1)(iii)
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Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
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1122(d)(1)(iv)
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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.
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Cash Collection and Administration
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1122(d)(2)(i)
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Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
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X
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X
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1122(d)(2)(ii)
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Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
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X
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1122(d)(2)(iii)
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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.
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1122(d)(2)(iv)
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The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
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I-1
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Reg
AB Reference
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Servicing
Criteria
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Paying
Agent
(including
the Trustee if acting as Paying Agent)
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Trustee
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1122(d)(2)(v)
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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.
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1122(d)(2)(vi)
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Unissued
checks are safeguarded so as to prevent unauthorized access.
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X
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1122(d)(2)(vii)
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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.
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X
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Investor
Remittances and Reporting
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1122(d)(3)(i)
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Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of pool assets serviced by the Servicer.
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X
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I-2
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Reg
AB Reference
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Servicing
Criteria
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Paying
Agent
(including
the Trustee if acting as Paying Agent)
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Trustee
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1122(d)(3)(ii)
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Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
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X
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X
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1122(d)(3)(iii)
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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.
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X
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1122(d)(3)(iv)
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Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
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X
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Pool
Asset Administration
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1122(d)(4)(i)
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Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
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X1
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1122(d)(4)(ii)
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Pool
assets and related documents are safeguarded as required by the
transaction agreements
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X1
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1122(d)(4)(iii)
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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.
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X
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1122(d)(4)(iv)
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Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
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1 With respect to the Underlying Security, but
not
the Underlying Mortgage Loans.
I-3
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Reg
AB Reference
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Servicing
Criteria
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Paying
Agent
(including
the Trustee if acting as Paying Agent)
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Trustee
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1122(d)(4)(v)
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The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
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1122(d)(4)(vi)
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Changes
with respect to the terms or status of an obligor’s pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
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1122(d)(4)(vii)
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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.
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1122(d)(4)(viii)
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Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
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1122(d)(4)(ix)
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Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
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1122(d)(4)(x)
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Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
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I-4
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Reg
AB Reference
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Servicing
Criteria
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Paying
Agent
(including
the Trustee if acting as Paying Agent)
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Trustee
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1122(d)(4)(xi)
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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.
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1122(d)(4)(xii)
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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.
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1122(d)(4)(xiii)
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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.
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1122(d)(4)(xiv)
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Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
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1122(d)(4)(xv)
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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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I-5
