STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, and U.S. BANK NATIONAL ASSOCIATION, as Trustee
EXECUTION
COPY
STRUCTURED
ASSET SECURITIES CORPORATION,
as
Depositor,
AURORA
LOAN SERVICES LLC,
as
Master
Servicer,
and
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
TRUST
AGREEMENT
Dated
as
of November 1, 2007
XXXXXX
XS
TRUST
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES
2007-20N
TABLE
OF CONTENTS
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Page
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DEFINITIONS
|
14
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Section
1.01
|
Definitions
|
14
|
|
|
Section
1.02
|
Calculations
Respecting Mortgage Loans
|
54
|
|
|
Section
1.03
|
Calculations
Respecting Accrued Interest
|
54
|
|
|
Section
1.04
|
Rights
of the NIMS Insurer
|
54
|
|
|
ARTICLE
II.
|
DECLARATION
OF TRUST; ISSUANCE OF CERTIFICATES
|
54
|
|
|
Section
2.01
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans
|
54
|
|
|
Section
2.02
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund
|
58
|
|
|
Section
2.03
|
Representations
and Warranties of the Depositor
|
60
|
|
|
Section
2.04
|
Discovery
of Breach
|
62
|
|
|
Section
2.05
|
Repurchase,
Purchase or Substitution of Mortgage Loans
|
62
|
|
|
Section
2.06
|
Grant
Clause
|
63
|
|
|
ARTICLE
III.
|
THE
CERTIFICATES
|
65
|
|
|
Section
3.01
|
The
Certificates
|
65
|
|
|
Section
3.02
|
Registration
|
66
|
|
|
Section
3.03
|
Transfer
and Exchange of Certificates
|
66
|
|
|
Section
3.04
|
Cancellation
of Certificates
|
72
|
|
|
Section
3.05
|
Replacement
of Certificates
|
72
|
|
|
Section
3.06
|
Persons
Deemed Owners
|
73
|
|
|
Section
3.07
|
Temporary
Certificates
|
73
|
|
|
Section
3.08
|
Appointment
of Paying Agent
|
73
|
|
|
Section
3.09
|
Book
Entry Certificates
|
74
|
|
|
ARTICLE
IV.
|
ADMINISTRATION
OF THE TRUST FUND
|
75
|
|
Section
4.01
|
Collection
Account
|
75
|
|
|
Section
4.02
|
Application
of Funds in the Collection Account
|
77
|
|
|
Section
4.03
|
Reports
to Certificateholders
|
80
|
|
|
Section
4.04
|
The
Certificate Account
|
84
|
|
|
ARTICLE
V.
|
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
|
85
|
|
|
Section
5.01
|
Distributions
Generally
|
85
|
-i-
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
|
Section
5.02
|
Distributions
from the Certificate Account.
|
86
|
|
|
Section
5.03
|
Allocation
of Losses
|
93
|
|
|
Section
5.04
|
Advances
by Master Servicer, Servicer and Trustee
|
94
|
|
|
Section
5.05
|
Compensating
Interest Payments
|
95
|
|
|
Section
5.06
|
Basis
Risk Reserve Fund
|
95
|
|
|
Section
5.07
|
Class
AP Reserve Funds
|
95
|
|
|
Section
5.08
|
Supplemental
Interest Trust
|
96
|
|
|
Section
5.09
|
Rights
of Swap Counterparty
|
96
|
|
|
Section
5.10
|
Termination
Receipts
|
97
|
|
|
Section
5.11
|
Collateral
Account
|
98
|
|
|
Section
5.12
|
Reserved
|
98
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|
|
Section
5.13
|
X
Component Account
|
98
|
|
|
ARTICLE
VI.
|
CONCERNING
THE TRUSTEE; EVENTS OF DEFAULT
|
99
|
|
|
Section
6.01
|
Duties
of Trustee
|
99
|
|
|
Section
6.02
|
Certain
Matters Affecting the Trustee
|
102
|
|
|
Section
6.03
|
Trustee
Not Liable for Certificates
|
103
|
|
|
Section
6.04
|
Trustee
May Own Certificates
|
103
|
|
|
Section
6.05
|
Eligibility
Requirements for Trustee
|
104
|
|
|
Section
6.06
|
Resignation
and Removal of Trustee
|
104
|
|
|
Section
6.07
|
Successor
Trustee
|
105
|
|
|
Section
6.08
|
Merger
or Consolidation of Trustee
|
105
|
|
|
Section
6.09
|
Appointment
of Co-Trustee, Separate Trustee or Custodian
|
106
|
|
|
Section
6.10
|
Authenticating
Agents
|
108
|
|
|
Section
6.11
|
Indemnification
of Trustee
|
109
|
|
|
Section
6.12
|
Fees
and Expenses of Trustee and Custodians
|
110
|
|
|
Section
6.13
|
Collection
of Monies
|
110
|
|
|
Section
6.14
|
Events
of Default; Trustee To Act; Appointment of Successor
|
110
|
|
|
Section
6.15
|
Additional
Remedies of Trustee Upon Event of Default
|
115
|
|
|
Section
6.16
|
Waiver
of Defaults
|
115
|
|
|
Section
6.17
|
Notification
to Holders
|
115
|
-ii-
TABLE
OF CONTENTS
(continued)
|
Page
|
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|
Section
6.18
|
Directions
by Certificateholders and Duties of Trustee During Event
of
Default
|
115
|
|
|
Section
6.19
|
Action
Upon Certain Failures of the Master Servicer and Upon Event
of
Default
|
116
|
|
|
Section
6.20
|
Preparation
of Tax Returns and Other Reports
|
116
|
|
|
Section
6.21
|
Reporting
Requirements of the Commission
|
122
|
|
|
Section
6.22
|
Indemnification
by the Trustee
|
123
|
|
|
ARTICLE
VII.
|
PURCHASE
OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND
|
123
|
|
|
Section
7.01
|
Purchase
of Mortgage Loans; Termination of the Trust Fund Upon Purchase
or
Liquidation of Mortgage Loans
|
123
|
|
|
Section
7.02
|
Procedure
Upon Termination of Trust Fund
|
125
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|
Section
7.03
|
Additional
Trust Fund Termination Requirements
|
126
|
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|
Section
7.04
|
Optional
Purchase Right of NIMS Insurer
|
127
|
|
|
ARTICLE
VIII.
|
RIGHTS
OF CERTIFICATEHOLDERS
|
127
|
|
|
Section
8.01
|
Limitation
on Rights of Holders
|
127
|
|
|
Section
8.02
|
Access
to List of Holders
|
128
|
|
|
Section
8.03
|
Acts
of Holders of Certificates
|
128
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|
|
ARTICLE
IX.
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER
|
129
|
|
|
Section
9.01
|
Duties
of the Master Servicer
|
129
|
|
|
Section
9.02
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions
Insurance
Policy
|
129
|
|
|
Section
9.03
|
Master
Servicer’s Financial Statements and Related Information
|
130
|
|
|
Section
9.04
|
Power
to Act; Procedures
|
130
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|
|
Section
9.05
|
Enforcement
of Servicers’ and Master Servicer’s Obligations
|
132
|
|
|
Section
9.06
|
Collection
of Taxes, Assessments and Similar Items
|
133
|
|
|
Section
9.07
|
Termination
of Servicing Agreements; Successor Servicers
|
134
|
|
|
Section
9.08
|
Master
Servicer Liable for Enforcement
|
135
|
|
|
Section
9.09
|
No
Contractual Relationship Between the Servicer, Any NIMS Insurer
and
Trustee or Depositor
|
135
|
|
|
Section
9.10
|
Assumption
of Servicing Agreement by the Trustee
|
135
|
-iii-
TABLE
OF CONTENTS
(continued)
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Page
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|
Section
9.11
|
Due-on-Sale
Clauses; Assumption Agreements; Easements
|
136
|
|
|
Section
9.12
|
Release
of Mortgage Files
|
136
|
|
|
Section
9.13
|
Documents,
Records and Funds in Possession of Master Servicer To Be
Held for
Trustee
|
137
|
|
|
Section
9.14
|
Representations
and Warranties of the Master Servicer
|
139
|
|
|
Section
9.15
|
Opinion
|
141
|
|
|
Section
9.16
|
Standard
Hazard and Flood Insurance Policies
|
141
|
|
|
Section
9.17
|
Presentment
of Claims and Collection of Proceeds
|
142
|
|
|
Section
9.18
|
Maintenance
of the Primary Mortgage Insurance Policies
|
142
|
|
|
Section
9.19
|
Trustee
To Retain Possession of Certain Insurance Policies and
Documents
|
142
|
|
|
Section
9.20
|
Realization
Upon Defaulted Mortgage Loans
|
143
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|
|
Section
9.21
|
Compensation
to the Master Servicer
|
144
|
|
|
Section
9.22
|
REO
Property
|
144
|
|
|
Section
9.23
|
Notice
to the Sponsor, the Depositor and the Trustee
|
145
|
|
|
Section
9.24
|
Reports
to the Trustee
|
145
|
|
|
Section
9.25
|
Assessment
of Compliance and Attestation Reports
|
146
|
|
|
Section
9.26
|
Annual
Statement of Compliance with Applicable Servicing Criteria
|
148
|
|
|
Section
9.27
|
Merger
or Consolidation
|
148
|
|
|
Section
9.28
|
Resignation
of Master Servicer
|
149
|
|
|
Section
9.29
|
Assignment
or Delegation of Duties by the Master Servicer
|
149
|
|
|
Section
9.30
|
Limitation
on Liability of the Master Servicer and Others
|
150
|
|
|
Section
9.31
|
Indemnification;
Third Party Claims
|
150
|
|
|
Section
9.32
|
Special
Servicing of Delinquent Mortgage Loans
|
151
|
|
|
Section
9.33
|
Allocation
to Related Mortgage Pool
|
151
|
|
|
ARTICLE
X.
|
REMIC
ADMINISTRATION
|
151
|
|
|
Section
10.01
|
REMIC
Administration
|
151
|
|
|
Section
10.02
|
Prohibited
Transactions and Activities
|
160
|
|
|
Section
10.03
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status
|
160
|
-iv-
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
|
Section
10.04
|
REO
Property
|
161
|
|
|
Section
10.05
|
WHFIT
Provisions
|
161
|
|
|
ARTICLE
XI.
|
MISCELLANEOUS
PROVISIONS
|
162
|
|
|
Section
11.01
|
Binding
Nature of Agreement; Assignment
|
162
|
|
|
Section
11.02
|
Entire
Agreement
|
162
|
|
|
Section
11.03
|
Amendment
|
162
|
|
|
Section
11.04
|
Voting
Rights
|
164
|
|
|
Section
11.05
|
Provision
of Information
|
164
|
|
|
Section
11.06
|
Governing
Law
|
165
|
|
|
Section
11.07
|
Notices
|
165
|
|
|
Section
11.08
|
Severability
of Provisions
|
165
|
|
|
Section
11.09
|
Indulgences;
No Waivers
|
165
|
|
|
Section
11.10
|
Headings
Not To Affect Interpretation
|
166
|
|
|
Section
11.11
|
Benefits
of Agreement
|
166
|
|
|
Section
11.12
|
Special
Notices to the Rating Agencies, the Swap Counterparty and
NIMS
Insurer
|
166
|
|
|
Section
11.13
|
Conflicts
|
167
|
|
|
Section
11.14
|
Counterparts
|
167
|
|
|
Transfer
of Servicing
|
167
|
||
|
Section
11.16
|
Third
Party Rights
|
169
|
-v-
ATTACHMENTS
|
Exhibit
A
|
Forms
of Certificates
|
|
Exhibit
B-1
|
Form
of Initial Certification
|
|
Exhibit
B-2
|
Form
of Interim Certification
|
|
Exhibit
B-3
|
Form
of Final Certification
|
|
Exhibit
B-4
|
Form
of Endorsement
|
|
Exhibit
C
|
Request
for Release of Documents and Receipt
|
|
Exhibit
D-l
|
Form
of Residual Certificate Transfer Affidavit (Transferee)
|
|
Exhibit
D-2
|
Form
of Residual Certificate Transfer Affidavit (Transferor)
|
|
Exhibit
E
|
Servicing
Agreements
|
|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
I
|
[Reserved]
|
|
Exhibit
J
|
[Reserved]
|
|
Exhibit
K
|
|
|
Exhibit
L
|
[Reserved]
|
|
Exhibit
M
|
[Reserved]
|
|
Exhibit
N
|
Form
of Swap Agreement
|
|
Exhibit
O
|
Form
of Interest Rate Cap Agreement
|
|
Exhibit
P
|
[Reserved]
|
|
Exhibit
Q-1
|
Additional
Form 10-D Disclosure
|
|
Exhibit
Q-2
|
Additional
Form 10-K Disclosure
|
|
Exhibit
Q-3
|
Additional
Form 8-K Disclosure
|
|
Exhibit
Q-4
|
Additional
Disclosure Notification
|
|
Exhibit
R
|
Servicing
Criteria to be Addressed in Report on Assessment of
Compliance
|
|
Exhibit
S
|
Transaction
Parties
|
|
Exhibit
T
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification
|
|
Exhibit
U
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification to be Provided by the
Trustee
|
|
Exhibit
V-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security
|
|
Exhibit
V-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global Security
to
Restricted Global Security
|
|
Schedule
A
|
Mortgage
Loan Schedule
|
|
Swap
Agreement Scheduled Notional Amounts and Rates of
Payment
|
i
This
TRUST AGREEMENT, dated as of November 1, 2007 (the “Agreement”), is by and among
STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as depositor
(the “Depositor”), AURORA LOAN SERVICES LLC, as master servicer (the “Master
Servicer”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association,
as trustee (the “Trustee”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Mortgage Loans from Xxxxxx Brothers Holdings Inc.
(the “Seller”), and at the Closing Date is the owner of the Mortgage Loans and
the other property being conveyed by it to the Trustee hereunder for inclusion
in the Trust Fund. On the Closing Date, the Depositor will acquire the
Certificates from the Trust Fund as consideration for its transfer to the Trust
Fund of the Mortgage Loans and the other property constituting the Trust Fund.
The Depositor has duly authorized the execution and delivery of this Agreement
to provide for the conveyance to the Trustee of the Mortgage Loans and the
other
property constituting the Trust Fund. All covenants and agreements made by
the
Seller in the Mortgage Loan Sale Agreement and by the Depositor, the Master
Servicer and the Trustee herein with respect to the Mortgage Loans and the
other
property constituting the Trust Fund are for the benefit of the Holders from
time to time of the Certificates and, to the extent provided herein, any NIMS
Insurer and the Swap Counterparty. The Depositor, the Trustee and the Master
Servicer are entering into this Agreement, and the Trustee is accepting the
Trust Fund created hereby, for good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged.
As
provided herein, the Trustee shall elect that the Trust Fund (other than (i)
the
Basis Risk Reserve Fund, (ii) the rights to receive Prepayment Premiums
distributable to the Class P Certificates and the Class P Reserve Funds, (iii)
the X Component Account, (iv) the Interest Rate Cap Agreement and the Interest
Rate Cap Account, (v) the Swap Agreement and the Supplemental Interest Trust
and
(vi) the Lower Tier Interests) be treated for federal income tax purposes as
comprising four real estate mortgage investment conduits (each a “REMIC” and
referred to herein separately as the “SWAP REMIC,” “REMIC 1,” “REMIC 2” and
“REMIC 3”). Each Certificate (other than the Class C Certificates, the Class R
Certificates and the Class P Certificates) represents ownership of one or more
regular interests in REMIC 3 for purposes of the REMIC Provisions. In addition,
each Offered Certificate represents (i) the right to receive certain payments
with respect to Excess Interest and (ii) the obligation to make payments in
respect of Class I Shortfalls as set forth herein. The Class R Certificate
represents ownership of the sole Class of residual interest in each of the
SWAP
REMIC, REMIC 1, REMIC 2 and REMIC 3 for purposes of the REMIC Provisions.
REMIC
3
shall hold as its assets the several Classes of uncertificated REMIC 2 Regular
Interests and each such REMIC 2 Regular Interest is hereby designated as a
regular interest in REMIC 2. REMIC 2 shall hold as its assets the several
Classes of uncertificated REMIC 1 Regular Interests and each such REMIC 1
Regular Interest is hereby designated as a regular interest in REMIC 1. REMIC
1
shall hold as its assets the several Classes of uncertificated SWAP REMIC
Regular Interests and each such SWAP REMIC Regular Interest is hereby designated
as a regular interest in the SWAP REMIC. The SWAP REMIC shall hold as its assets
the property of the Trust Fund other than (i) the Basis Risk Reserve Fund,
(ii)
the Lower
Tier
Interests, (iii) the X Component Account, (iv) the
Interest Rate Cap Agreement and the Interest Rate Cap Account, (v) the Swap
Agreement and the Supplemental Interest Trust and (vi) the rights to receive
Prepayment Premiums distributable to the Class P Certificates and the Class
P
Reserve Funds.
The
SWAP REMIC
The
following table sets forth (or describes) the Class designations, interest
rate
and initial principal amount for each Class of SWAP REMIC
Interests:
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
SW-Z
|
$
|
51,933,957.120
|
(1
|
)
|
|||
|
SW2A
|
$
|
5,406,957.000
|
(2
|
)
|
|||
|
SW2B
|
$
|
5,406,957.000
|
(3
|
)
|
|||
|
SW3A
|
$
|
5,261,094.000
|
(2
|
)
|
|||
|
SW3B
|
$
|
5,261,094.000
|
(3
|
)
|
|||
|
SW4A
|
$
|
5,119,218.500
|
(2
|
)
|
|||
|
SW4B
|
$
|
5,119,218.500
|
(3
|
)
|
|||
|
SW5A
|
$
|
4,981,220.500
|
(2
|
)
|
|||
|
SW5B
|
$
|
4,981,220.500
|
(3
|
)
|
|||
|
SW6A
|
$
|
4,846,992.000
|
(2
|
)
|
|||
|
SW6B
|
$
|
4,846,992.000
|
(3
|
)
|
|||
|
SW7A
|
$
|
4,716,429.000
|
(2
|
)
|
|||
|
SW7B
|
$
|
4,716,429.000
|
(3
|
)
|
|||
|
SW8A
|
$
|
4,589,430.000
|
(2
|
)
|
|||
|
SW8B
|
$
|
4,589,430.000
|
(3
|
)
|
|||
|
SW9A
|
$
|
4,465,898.000
|
(2
|
)
|
|||
|
SW9B
|
$
|
4,465,898.000
|
(3
|
)
|
|||
|
SW10A
|
$
|
4,345,734.500
|
(2
|
)
|
|||
|
SW10B
|
$
|
4,345,734.500
|
(3
|
)
|
|||
|
SW11A
|
$
|
4,228,849.500
|
(2
|
)
|
|||
|
SW11B
|
$
|
4,228,849.500
|
(3
|
)
|
|||
|
SW12A
|
$
|
4,115,150.500
|
(2
|
)
|
|||
|
SW12B
|
$
|
4,115,150.500
|
(3
|
)
|
|||
|
SW13A
|
$
|
4,004,550.000
|
(2
|
)
|
|||
|
SW13B
|
$
|
4,004,550.000
|
(3
|
)
|
|||
|
SW14A
|
$
|
3,896,963.000
|
(2
|
)
|
|||
|
SW14B
|
$
|
3,896,963.000
|
(3
|
)
|
|||
|
SW15A
|
$
|
3,792,306.000
|
(2
|
)
|
|||
|
SW15B
|
$
|
3,792,306.000
|
(3
|
)
|
|||
|
SW16A
|
$
|
3,690,498.000
|
(2
|
)
|
|||
|
SW16B
|
$
|
3,690,498.000
|
(3
|
)
|
|||
|
SW17A
|
$
|
3,591,461.500
|
(2
|
)
|
|||
|
SW17B
|
$
|
3,591,461.500
|
(3
|
)
|
|||
2
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
SW18A
|
$
|
3,495,119.000
|
(2
|
)
|
|||
|
SW18B
|
$
|
3,495,119.000
|
(3
|
)
|
|||
|
SW19A
|
$
|
3,401,397.000
|
(2
|
)
|
|||
|
SW19B
|
$
|
3,401,397.000
|
(3
|
)
|
|||
|
SW20A
|
$
|
3,310,894.000
|
(2
|
)
|
|||
|
SW20B
|
$
|
3,310,894.000
|
(3
|
)
|
|||
|
SW21A
|
$
|
3,222,163.500
|
(2
|
)
|
|||
|
SW21B
|
$
|
3,222,163.500
|
(3
|
)
|
|||
|
SW22A
|
$
|
3,136,088.500
|
(2
|
)
|
|||
|
SW22B
|
$
|
3,136,088.500
|
(3
|
)
|
|||
|
SW23A
|
$
|
3,052,101.500
|
(2
|
)
|
|||
|
SW23B
|
$
|
3,052,101.500
|
(3
|
)
|
|||
|
SW24A
|
$
|
2,970,395.000
|
(2
|
)
|
|||
|
SW24B
|
$
|
2,970,395.000
|
(3
|
)
|
|||
|
SW25A
|
$
|
2,891,330.000
|
(2
|
)
|
|||
|
SW25B
|
$
|
2,891,330.000
|
(3
|
)
|
|||
|
SW26A
|
$
|
2,813,976.500
|
(2
|
)
|
|||
|
SW26B
|
$
|
2,813,976.500
|
(3
|
)
|
|||
|
SW27A
|
$
|
2,738,814.000
|
(2
|
)
|
|||
|
SW27B
|
$
|
2,738,814.000
|
(3
|
)
|
|||
|
SW28A
|
$
|
2,665,962.000
|
(2
|
)
|
|||
|
SW28B
|
$
|
2,665,962.000
|
(3
|
)
|
|||
|
SW29A
|
$
|
2,595,175.000
|
(2
|
)
|
|||
|
SW29B
|
$
|
2,595,175.000
|
(3
|
)
|
|||
|
SW30A
|
$
|
2,526,313.000
|
(2
|
)
|
|||
|
SW30B
|
$
|
2,526,313.000
|
(3
|
)
|
|||
|
SW31A
|
$
|
2,459,656.000
|
(2
|
)
|
|||
|
SW31B
|
$
|
2,459,656.000
|
(3
|
)
|
|||
|
SW32A
|
$
|
2,395,549.000
|
(2
|
)
|
|||
|
SW32B
|
$
|
2,395,549.000
|
(3
|
)
|
|||
|
SW33A
|
$
|
2,333,505.000
|
(2
|
)
|
|||
|
SW33B
|
$
|
2,333,505.000
|
(3
|
)
|
|||
|
SW34A
|
$
|
2,273,132.000
|
(2
|
)
|
|||
|
SW34B
|
$
|
2,273,132.000
|
(3
|
)
|
|||
|
SW35A
|
$
|
2,219,053.000
|
(2
|
)
|
|||
|
SW35B
|
$
|
2,219,053.000
|
(3
|
)
|
|||
|
SW36A
|
$
|
8,816,328.500
|
(2
|
)
|
|||
|
SW36B
|
$
|
8,816,328.500
|
(3
|
)
|
|||
|
SW37A
|
$
|
1,920,325.500
|
(2
|
)
|
|||
|
SW37B
|
$
|
1,920,325.500
|
(3
|
)
|
|||
|
SW38A
|
$
|
1,871,123.500
|
(2
|
)
|
|||
|
SW38B
|
$
|
1,871,123.500
|
(3
|
)
|
|||
3
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
SW39A
|
$
|
1,827,271.000
|
(2
|
)
|
|||
|
SW39B
|
$
|
1,827,271.000
|
(3
|
)
|
|||
|
SW40A
|
$
|
1,782,117.000
|
(2
|
)
|
|||
|
SW40B
|
$
|
1,782,117.000
|
(3
|
)
|
|||
|
SW41A
|
$
|
1,735,576.500
|
(2
|
)
|
|||
|
SW41B
|
$
|
1,735,576.500
|
(3
|
)
|
|||
|
SW42A
|
$
|
1,691,667.500
|
(2
|
)
|
|||
|
SW42B
|
$
|
1,691,667.500
|
(3
|
)
|
|||
|
SW43A
|
$
|
1,648,448.500
|
(2
|
)
|
|||
|
SW43B
|
$
|
1,648,448.500
|
(3
|
)
|
|||
|
SW44A
|
$
|
1,607,990.500
|
(2
|
)
|
|||
|
SW44B
|
$
|
1,607,990.500
|
(3
|
)
|
|||
|
SW45A
|
$
|
1,577,867.000
|
(2
|
)
|
|||
|
SW45B
|
$
|
1,577,867.000
|
(3
|
)
|
|||
|
SW46A
|
$
|
1,555,728.000
|
(2
|
)
|
|||
|
SW46B
|
$
|
1,555,728.000
|
(3
|
)
|
|||
|
SW47A
|
$
|
1,538,113.000
|
(2
|
)
|
|||
|
SW47B
|
$
|
1,538,113.000
|
(3
|
)
|
|||
|
SW48A
|
$
|
1,501,966.000
|
(2
|
)
|
|||
|
SW48B
|
$
|
1,501,966.000
|
(3
|
)
|
|||
|
SW49A
|
$
|
1,485,563.000
|
(2
|
)
|
|||
|
SW49B
|
$
|
1,485,563.000
|
(3
|
)
|
|||
|
SW50A
|
$
|
1,489,783.000
|
(2
|
)
|
|||
|
SW50B
|
$
|
1,489,783.000
|
(3
|
)
|
|||
|
SW51A
|
$
|
1,453,828.500
|
(2
|
)
|
|||
|
SW51B
|
$
|
1,453,828.500
|
(3
|
)
|
|||
|
SW52A
|
$
|
47,514,454.500
|
(2
|
)
|
|||
|
SW52B
|
$
|
47,514,454.500
|
(3
|
)
|
|||
|
SW53A
|
$
|
20,942.000
|
(2
|
)
|
|||
|
SW53B
|
$
|
20,942.000
|
(3
|
)
|
|||
|
SW54A
|
$
|
21,248.500
|
(2
|
)
|
|||
|
SW54B
|
$
|
21,248.500
|
(3
|
)
|
|||
|
SW55A
|
$
|
20,934.500
|
(2
|
)
|
|||
|
SW55B
|
$
|
20,934.500
|
(3
|
)
|
|||
|
SW56A
|
$
|
20,476.000
|
(2
|
)
|
|||
|
SW56B
|
$
|
20,476.000
|
(3
|
)
|
|||
|
SW57A
|
$
|
20,426.500
|
(2
|
)
|
|||
|
SW57B
|
$
|
20,426.500
|
(3
|
)
|
|||
|
SW58A
|
$
|
19,960.000
|
(2
|
)
|
|||
|
SW58B
|
$
|
19,960.000
|
(3
|
)
|
|||
|
SW59A
|
$
|
19,445.500
|
(2
|
)
|
|||
|
SW59B
|
$
|
19,445.500
|
(3
|
)
|
|||
4
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
SW60A
|
$
|
644,559.500
|
(2
|
)
|
|||
|
SW60B
|
$
|
644,559.500
|
(3
|
)
|
|||
|
SW-R
|
(4
|
)
|
(4
|
)
|
|||
| (1) |
The
interest rate on the Class SW-Z Interest shall be a per annum rate
equal
to the Net
Rate.
|
| (2) |
For
any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest ending with the designation “A” shall be a per annum rate equal
to 2 times the Net Rate, subject to a maximum rate of 2 times the
REMIC
Swap Rate for such Distribution
Date.
|
| (3) |
For
any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest ending with the designation “B” shall be a per annum rate equal
to the greater of (x) the excess, if any, of (i) 2 times the Net
Rate over (ii) 2 times the REMIC Swap Rate for such Distribution
Date and
(y) 0.00%.
|
| (4) |
The
Class SW-R Interest shall have no principal amount and shall bear
no
interest. It shall be represented by the Class R
Certificate.
|
REMIC
1
The
following table sets forth (or describes) the Class designation, interest rate,
and initial principal amount for each Class of REMIC 1 Interests.
|
Class
Designation
|
Interest
Rate
|
Initial
Class Principal Amount
|
Corresponding
Class of Certificates
|
|||||||
|
LT1-A1
|
(1
|
)
|
(2
|
)
|
A1
|
|||||
|
LT1-A2
|
(1
|
)
|
(2
|
)
|
A2
|
|||||
|
LT1-A3
|
(1
|
)
|
(2
|
)
|
A3
|
|||||
|
LT1-M1
|
(1
|
)
|
(2
|
)
|
M1
|
|||||
|
LT1-M2
|
(1
|
)
|
(2
|
)
|
M2
|
|||||
|
LT1-M3
|
(1
|
)
|
(2
|
)
|
M3
|
|||||
|
LT1-M4
|
(1
|
)
|
(2
|
)
|
M4
|
|||||
|
LT1-M5
|
(1
|
)
|
(2
|
)
|
M5
|
|||||
|
LT1-M6
|
(1
|
)
|
(2
|
)
|
M6
|
|||||
|
LT1-X
|
(1
|
)
|
(3
|
)
|
N/A
|
|||||
|
LT1-IO
|
(4
|
)
|
(4
|
)
|
N/A
|
|||||
|
LT1-R
|
(5
|
)
|
(5
|
)
|
N/A
|
|||||
| (1) |
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these REMIC 1 Interests is a per annum
rate
equal to the weighted average of the interest rates on the SWAP REMIC
Regular Interests for such Distribution Date, provided however, that
for
any Distribution Date on which the Class LT1-IO Interest is entitled
to a
portion of interest accruals on a SWAP REMIC Regular Interest ending
with
a designation “A” as described in footnote 4 below, such weighted average
shall be computed by first subjecting the rate on such SWAP REMIC
Regular
Interest to a cap equal to Swap LIBOR for such Distribution
Date.
|
| (2) |
The
initial principal amount for each of these REMIC 1 Interests equals
50% of
the initial principal amount of the Corresponding Class of
Certificates.
|
| (3) |
This
interest shall have an initial principal balance equal to the excess
of
(i) the Cut-off Date Balance over (ii) the aggregate initial principal
balance of the REMIC 1 Marker
Classes.
|
5
| (4) |
The
Class LT1-IO Interest is an interest-only class that does not have
a
principal balance. For only those Distribution Dates listed in the
first
column of the table below, the Class LT1-IO Interest shall be entitled
to
interest accrued on the SWAP REMIC Regular Interests listed in the
second
column below at a per annum rate equal to the excess, if any, of
(i) the
interest rate for such SWAP REMIC Regular Interest for such Distribution
Date over (ii) Swap LIBOR for such Distribution
Date.
|
|
Distribution
Date
|
SWAP
REMIC Regular Interest
|
|
|
2
|
Class
SW2A
|
|
|
2-3
|
Class
SW3A
|
|
|
2-4
|
Class
SW4A
|
|
|
2-5
|
Class
SW5A
|
|
|
2-6
|
Class
SW6A
|
|
|
2-7
|
Class
SW7A
|
|
|
2-8
|
Class
SW8A
|
|
|
2-9
|
Class
SW9A
|
|
|
2-10
|
Class
SW10A
|
|
|
2-11
|
Class
SW11A
|
|
|
2-12
|
Class
SW12A
|
|
|
2-13
|
Class
SW13A
|
|
|
2-14
|
Class
SW14A
|
|
|
2-15
|
Class
SW15A
|
|
|
2-16
|
Class
SW16A
|
|
|
2-17
|
Class
SW17A
|
|
|
2-18
|
Class
SW18A
|
|
|
2-19
|
Class
SW19A
|
|
|
2-20
|
Class
SW20A
|
|
|
2-21
|
Class
SW21A
|
|
|
2-22
|
Class
SW22A
|
6
|
Distribution
Date
|
SWAP
REMIC Regular Interest
|
|
|
2-23
|
Class
SW23A
|
|
|
2-24
|
Class
SW24A
|
|
|
2-25
|
Class
SW25A
|
|
|
2-26
|
Class
SW26A
|
|
|
2-27
|
Class
SW27A
|
|
|
2-28
|
Class
SW28A
|
|
|
2-29
|
Class
SW29A
|
|
|
2-30
|
Class
SW30A
|
|
|
2-31
|
Class
SW31A
|
|
|
2-32
|
Class
SW32A
|
|
|
2-33
|
Class
SW33A
|
|
|
2-34
|
Class
SW34A
|
|
|
2-35
|
Class
SW35A
|
|
|
2-36
|
Class
SW36A
|
|
|
2-37
|
Class
SW37A
|
|
|
2-38
|
Class
SW38A
|
|
|
2-39
|
Class
SW39A
|
|
|
2-40
|
Class
SW40A
|
|
|
2-41
|
Class
SW41A
|
|
|
2-42
|
Class
SW42A
|
|
|
2-43
|
Class
SW43A
|
|
|
2-44
|
Class
SW44A
|
|
|
2-45
|
Class
SW45A
|
|
|
2-46
|
Class
SW46A
|
7
|
Distribution
Date
|
SWAP
REMIC Regular Interest
|
|
|
2-47
|
Class
SW47A
|
|
|
2-48
|
Class
SW48A
|
|
|
2-49
|
Class
SW49A
|
|
|
2-50
|
Class
SW50A
|
|
|
2-51
|
Class
SW51A
|
|
|
2-52
|
Class
SW52A
|
|
|
2-53
|
Class
SW53A
|
|
|
2-54
|
Class
SW54A
|
|
|
2-55
|
Class
SW55A
|
|
|
2-56
|
Class
SW56A
|
|
|
2-57
|
Class
SW57A
|
|
|
2-58
|
Class
SW58A
|
|
|
2-59
|
Class
SW59A
|
|
|
2-60
|
Class
SW60A
|
(5) The
Class
LT1-R Interest is the sole Class of residual interest in REMIC 1. It does not
have an interest rate or a principal balance. It shall be represented by the
Class R Certificate.
REMIC
2
The
following table sets forth (or describes) the Class designation, interest rate,
and initial principal amount for each Class of REMIC 2 Interests.
|
Class
|
Interest
|
Initial
Class
|
Class
of Related
|
|||||||
|
Designation
|
Rate
|
Principal
Amount
|
Certificates
|
|||||||
|
LT2-A1
|
(1
|
)
|
(2
|
)
|
A1
|
|||||
|
LT2-A2
|
(1
|
)
|
(2
|
)
|
A2
|
|||||
|
LT2-A3
|
(1
|
)
|
(2
|
)
|
A3
|
|||||
8
|
LT2-M1
|
(3
|
)
|
(2
|
)
|
M1
|
|||||
|
LT2-M2
|
(3
|
)
|
(2
|
)
|
M2
|
|
LT2-M3
|
(3
|
)
|
(2
|
)
|
M3
|
|||||
|
LT2-M4
|
(3
|
)
|
(2
|
)
|
M4
|
|||||
|
LT2-M5
|
(3
|
)
|
(2
|
)
|
M5
|
|||||
|
LT2-M6
|
(3
|
)
|
(2
|
)
|
M6
|
|||||
|
LT2-X
|
(4
|
)
|
(4
|
)
|
N/A
|
|||||
|
LT2-IO
|
(5
|
)
|
(5
|
)
|
N/A
|
|||||
|
LT2-R
|
(6
|
)
|
(6
|
)
|
N/A
|
| (1) |
The
per annum interest rate for each of these REMIC 2 Interests (A) with
respect to any Distribution Date (and the related Accrual Period)
on or
prior to the Distribution Date in November 2012 shall equal the lesser
of
(i) the sum of (x) Certificate Interest Rate of the Class of Related
Certificates (disregarding any Net Funds Cap) and (y) 1.00% and (ii)
the
REMIC Net Rate and (B) with respect to any Distribution Date (and
the
related Accrual Period) after the Distribution Date in November 2012
shall
equal the lesser of (i) the Certificate Interest Rate of the Class
of
Related Certificates (disregarding any Net Funds Cap) and (ii) the
REMIC
Net Rate.
|
| (2) |
The
initial principal amount of each of these REMIC 2 Interests shall
equal
the initial Certificate Principal Amount of the Class of Related
Certificates.
|
| (3) |
The
per annum interest rate for each of these REMIC 2 Interests with
respect
to any Distribution Date (and the related Accrual Period) shall equal
the
excess of (x) the product of (i) the REMIC Net Rate and (ii) a fraction
the numerator of which is the actual number of days in the related
Accrual
Period and the denominator of which is 30 over (y)
0.50%.
|
| (4) |
The
Class LT2-X Interest shall have an initial principal balance equal
to the
excess of the Cut-off Date Balance over the aggregate initial Certificate
Principal Amounts of the Certificates. The Class LT2-X Interest shall
accrue interest on a notional balance equal to the X Component Notional
Balance at a rate equal to the X Component Interest
Rate.
|
| (5) |
The
Class LT2-IO Interest shall have no principal amount and will not
have an
interest rate, but will be entitled to 100% of the interest accrued
with
respect to the Class LT1-IO Interest.
|
| (6) |
The
Class LT2-R Interest is the sole Class of residual interest in REMIC
2. It
does not have an interest rate or a principal balance. The Class
LT2-R
Interest shall be represented by the Class R
Certificate.
|
REMIC
3
The
following table sets forth (or describes) the Class designation, interest rate,
and initial principal amount for each Class of REMIC 3 Interests.
|
Class
|
Interest
|
Initial
Class
|
Class
of Related
|
|||||||
|
Designation
|
Rate
|
Principal
Amount
|
Certificates
|
|||||||
|
LT3-A1
|
(1
|
)
|
(2
|
)
|
A1
|
|||||
9
|
LT3-A2
|
(1
|
)
|
(2
|
)
|
A2
|
|||||
|
LT3-A3
|
(1
|
)
|
(2
|
)
|
A3
|
|||||
|
LT3-M1
|
(1
|
)
|
(2
|
)
|
M1
|
|||||
|
LT3-M2
|
(1
|
)
|
(2
|
)
|
M2
|
|||||
|
LT3-M3
|
(1
|
)
|
(2
|
)
|
M3
|
|||||
|
LT3-M4
|
(1
|
)
|
(2
|
)
|
M4
|
|||||
|
LT3-M5
|
(1
|
)
|
(2
|
)
|
M5
|
|||||
|
LT3-M6
|
(1
|
)
|
(2
|
)
|
M6
|
|
Uncertificated
Class X Interest
|
(3
|
)
|
(3
|
)
|
N/A
|
|||||
|
LT3-IO
|
(4
|
)
|
(4
|
)
|
N/A
|
|||||
|
LT3-AX
|
(5
|
)
|
(5
|
)
|
N/A
|
|||||
|
Residual
Interest
|
(6
|
)
|
(6
|
)
|
N/A
|
| (1) |
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these REMIC 3 Interests is a per annum
rate
equal to the Certificate Interest Rate for the Related Certificates,
provided that (i) in the case of any such REMIC 3 Interest the Related
Certificates of which is a Senior Certificate, in lieu of any Net
Funds
Cap set forth in the applicable Certificate Interest Rate, the REMIC
Net
Rate shall be used and (ii) in the case of any such REMIC 3 Interest
the
Related Certificates of which is a Subordinate Certificate, in lieu of any
Net Funds Cap or Net WAC set forth in the applicable Certificate
Interest
Rate, the REMIC Net Rate multiplied by the actual number of days
in the
related Accrual Period and divided by 30 shall be used, and further
provided that these REMIC 3 Interests shall not be entitled to payments
with respect to Excess Interest and shall not have any obligations
with
respect to Class I Shortfalls.
|
| (2) |
The
initial principal amount for each of these REMIC 3 Interests shall
equal
the initial Certificate Principal Amount of the Class of Related
Certificates.
|
| (3) |
The
Uncertificated Class X Interest shall have an initial principal balance
equal to the excess of the Cut-off Date Balance over the aggregate
initial
Certificate Principal Amounts of the Certificates. The Uncertificated
Class X Interest shall accrue interest on a notional balance equal
to the
X Component Notional Balance at a rate equal to the X Component Interest
Rate. The Uncertificated Class X Interest shall be represented by
the
Class X Certificates.
|
| (4) |
The
Class LT3-IO Interest shall have no principal amount and will not
have an
interest rate, but will be entitled to 100% of the interest accrued
with
respect to the Class LT2-IO Interest. The Class LT3-IO Interest shall
be
represented by the Class X
Certificates.
|
| (5) |
The
Class LT3-AX Interest shall be an “interest-only” interest that shall not
have a principal amount and, for each Distribution Date on which
the Class
AX Certificates are entitled to distributions, shall be entitled
to a
“specified portion” of the interest accrued on each of the REMIC 2
Interests the Class of Related Certificates of which is a Class of
Senior
Certificates. Such “specified portion” shall equal all interest accrued
thereon in excess of the interest accrued thereon at a per annum
rate
equal to the Certificate Interest Rate of the Class of Related
Certificates (disregarding any Net Funds Cap). The Class LT3-AX Interest
shall be represented by the Class AX
Certificates.
|
| (6) |
The
Residual Interest is the sole Class of residual interest in REMIC
3. It
does not have an interest rate or a principal balance. It shall be
represented by the Class R
Certificate.
|
10
All
calculations of interest on each regular interest in the SWAP REMIC, REMIC
1,
REMIC 2 and REMIC 3 will be made on an “actual/360” basis (except for
calculations of interest on (i) each regular interest in REMIC 2 and REMIC
3 the
Class of Related Certificates of which accrues interest on a “30/360” basis and
(ii) the Class LT3-AX Interest which will be made on a “30/360”
basis).
The
startup day for each REMIC created hereby for purposes of the REMIC Provisions
is the Closing Date. In addition, for purposes of the REMIC Provisions, the
latest possible maturity date for each regular interest in each REMIC created
hereby is the Latest Possible Maturity Date.
11
The
Certificates
The
following table sets forth (or describes) the Class designation, Certificate
Interest Rate, initial Class Principal Amount (or Class Notional Amount) and
minimum denomination for each Class of Certificates comprising interests in
the
Trust Fund created hereunder. Each Offered Certificate and Class X Certificate
represents ownership of regular interests in REMIC 3.
|
Initial
Class Principal
|
||||||||||
|
Amount
or Class
|
Minimum
|
|||||||||
|
Class
Designation
|
Interest
Rate
|
Notional
Amount
|
Denominations
|
|||||||
|
Class
A1
|
(1
|
)
|
$
|
275,192,000
|
$
|
25,000.00
|
||||
|
Class
A2
|
(2
|
)
|
$
|
103,953,000
|
$
|
25,000.00
|
||||
|
Class
A3
|
(3
|
)
|
$
|
42,127,000
|
$
|
25,000.00
|
||||
|
Class
AX
|
(4
|
)
|
$
|
144,229,020
|
$
|
1,000,000.00
|
||||
|
Class
M1
|
(5
|
)
|
$
|
10,090,000
|
$
|
100,000.00
|
||||
|
Class
M2
|
(5
|
)
|
$
|
5,045,000
|
$
|
100,000.00
|
||||
|
Class
M3
|
(5
|
)
|
$
|
3,210,000
|
$
|
100,000.00
|
||||
|
Class
M4
|
(5
|
)
|
$
|
2,751,000
|
$
|
100,000.00
|
||||
|
Class
M5
|
(5
|
)
|
$
|
2,293,000
|
$
|
100,000.00
|
||||
|
Class
M6
|
(5
|
)
|
$
|
2,293,000
|
$
|
100,000.00
|
||||
|
Class
X
|
(6
|
)
|
(6
|
)
|
(7
|
)
|
||||
|
Class
AP
|
(8
|
)
|
$
|
1,000.00
|
$
|
10.00
|
||||
|
Class
R
|
(9
|
)
|
(9
|
)
|
(7
|
)
|
||||
|
Class
C
|
(10
|
)
|
(10
|
)
|
(7
|
)
|
||||
|
(1)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class A1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.150% (the “A1 Margin”) and
(ii) the Net Funds Cap for such Distribution Date; provided, that
if the
Mortgage Loans and related property are not purchased pursuant to
Section
7.01(b) on the Initial Optional Termination Date, then with respect
to
each subsequent Distribution Date the per annum rate calculated pursuant
to clause (i) above with respect to the Class A1 Certificates will
be
LIBOR plus 2.300%.
|
|
(2)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class A2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.250% (the “A2 Margin”) and
(ii) the Net Funds Cap for such Distribution Date; provided, that
if the
Mortgage Loans and related property are not purchased pursuant to
Section
7.01(b) on the Initial Optional Termination Date, then with respect
to
each subsequent Distribution Date the per annum rate calculated pursuant
to clause (i) above with respect to the Class A2 Certificates will
be
LIBOR plus 2.500%.
|
|
(3)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class A3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.250% (the “A3 Margin”) and
(ii) the Net Funds Cap for such Distribution Date; provided, that
if the
Mortgage Loans and related property are not purchased pursuant to
Section
7.01(b) on the Initial Optional Termination Date, then with respect
to
each subsequent Distribution Date the per annum rate calculated pursuant
to clause (i) above with respect to the Class A3 Certificates will
be
LIBOR plus 2.500%.
|
|
(4)
|
The
Certificate Interest Rate with respect to any Distribution Date through
and including the Distribution Date in November 2012 (and the related
Accrual Period) for the Class AX Certificates is the per annum rate
equal
to the lesser of (i) 1.00% per annum and (ii) the product of (1)
the
excess, if any, of (A) the Net Funds Cap for the
|
12
Senior
Certificates (other than the Class AX
Certificates) over (B) the weighted average Certificate Interest Rate of the
Senior Certificates (exclusive of the Class AX Certificates), (2) a fraction,
the numerator of which is the actual number of days in the related Accrual
Period and the denominator of which is 30 and (3) a fraction, the numerator
of
which is the aggregate outstanding Class Principal Amount of the Senior
Certificates and the denominator of which is the Class Notional Amount of the
Class AX Certificates for such Distribution Date. The Class AX Certificates
will
not be entitled to distributions of any kind after the Distribution Date in
November 2012.
|
(5)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M1, Class M2, Class M3, Class
M4,
Class M5 and Class M6 Certificates is the per annum rate equal to
the Net
WAC less 0.50% per annum, subject to the Net Funds
Cap.
|
|
(6)
|
For
purposes of the REMIC Provisions, the X Component of the Class X
Certificates shall have an initial principal balance equal to the
excess
of the Cut-off Date Balance over the aggregate initial Certificate
Principal Amounts of the Certificates. For each Distribution Date,
the X
Component of the Class X Certificates shall be entitled to the X
Component
Current Interest. Unpaid interest on the X Component of the Class
X
Certificates shall not itself bear interest. The S-X Component of
the
Class X Certificates shall represent an interest-only regular interest
in
REMIC 3 and shall represent beneficial ownership of the Supplemental
Interest Trust Account, including the Swap Agreement. For purposes
of the
REMIC Provisions, the C-X Component of the Class X Certificates shall
represent beneficial ownership of the Interest Rate Cap Agreement.
For the
purposes of the REMIC Provisions, the Class X Certificates shall
also
represent beneficial ownership of (i) the Basis Risk Reserve Fund
and (ii)
an interest in certain notional principal contracts described in
Section
10.01 hereof.
|
|
(7)
|
The
Class X and Class C Certificates will each be issued in minimum Percentage
Interests of 10% and increments of 1% thereafter. The Class R Certificate
will be issued as a single Certificate evidencing the entire Percentage
Interest in such Class.
|
|
(8)
|
Through
the distribution date in December 2010, the Class AP Certificates
will be
entitled to receive the Prepayment Premiums paid by borrowers upon
voluntary full or partial prepayment of the Mortgage Loans.
|
|
(9)
|
The
Class R Certificate will be issued without a Certificate Principal
Amount
and will not bear interest at a stated rate. The Class R Certificate
represents ownership of the residual interest in each
REMIC.
|
|
(10)
|
The
Class C Certificates will be issued without a Certificate Principal
Amount
and will not bear interest at a stated rate. The Class C Certificates
shall be entitled to receive all reinvestment income on amounts on
deposit
in the X Component Account and amounts on deposit in the X Component
Account on the Distribution Date as described herein as provided
in
Section 5.02(f).
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$458,652,997.12.
In
consideration of the mutual agreements herein contained, the Depositor, the
Seller, the Master Servicer and the Trustee hereby agree as
follows:
13
ARTICLE
I.
DEFINITIONS
Section
1.01 Definitions.
The
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
10-K
Filing Deadline:
As
defined in Section 6.20(d)(i).
A1
Margin:
As
defined in footnote (1) of the Preliminary Statement under the caption “The
Certificates”.
A2
Margin:
As
defined in footnote (2) of the Preliminary Statement under the caption “The
Certificates”.
A3
Margin:
As
defined in footnote (3) of the Preliminary Statement under the caption “The
Certificates”.
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that service
or
master service mortgage loans of the same type and quality as such Mortgage
Loan
in the jurisdiction where the related Mortgaged Property is located, to the
extent applicable to the Trustee (as successor master servicer) or the Master
Servicer or (y) as provided in the applicable Servicing Agreement, to the extent
applicable to the related Servicer.
Accountant:
A
person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accrual
Period:
For the
LIBOR Certificates for each Distribution Date, the period beginning on the
immediately preceding Distribution Date (or from November 25, 2007 in the case
of the first Distribution Date) and ending on the day immediately preceding
the
related Distribution Date. The LIBOR Certificates shall accrue interest on
the
basis of a 360-day year and the actual number of days in each Accrual Period.
For the Subordinate Certificates and the Notional Certificates, the calendar
month immediately preceding the month in which the related Distribution Date
occurs. The Subordinate Certificates and the Notional Certificates shall accrue
interest on the basis of a 360-day year and twelve 30-day months.
Act:
As
defined in Section 3.03(c)(i).
Additional
Form 10-D Disclosure:
As
defined in Section 6.20(c)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 6.20(d)(i).
14
Additional
Servicer:
Each
affiliate of each Servicer that Services any of the Mortgage Loans and each
Person who is not an affiliate of the any Servicer, who Services 10% or more
of
the Mortgage Loans.
Additional
Termination Event:
As
defined in the Swap Agreement.
Advance:
An
advance of the aggregate of payments of principal and interest (net of the
applicable Servicing Fee) on one or more Mortgage Loans that were due on the
Due
Date in the related Collection Period and not received as of the close of
business on the related Determination Date, required to be made by a Servicer
or
by the Master Servicer on behalf of a Servicer (or by the Trustee as successor
master servicer) pursuant to Section 5.04.
Adverse
REMIC Event:
Either
(i) loss of status as a REMIC, within the meaning of Section 860D of the Code,
for any group of assets identified as a REMIC in the Preliminary Statement
to
this Agreement, or (ii) imposition of any tax, including the tax imposed under
Section 860F(a)(1) on prohibited transactions, and the tax imposed under Section
860G(d) on certain contributions to a REMIC, on any REMIC created
hereunder.
Affected
Party:
As
defined in the Swap Agreement.
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.
Applicants:
As
defined in Section 8.02(b).
Applied
Loss Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the aggregate
Certificate Principal Amount of the LIBOR Certificates and Subordinate
Certificates after giving effect to all Realized Losses incurred with respect
to
the Mortgage Loans during the related Collection Period and distributions of
principal on such Distribution Date, but before giving effect to any application
of the Applied Loss Amount with respect to such date, exceeds (y) the Pool
Balance for such Distribution Date.
Appraised
Value:
With
respect to any Mortgage Loan, the amount set forth in an appraisal made in
connection with the origination of such Mortgage Loan as the value of the
related Mortgaged Property.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument, in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Trustee,
15
which
assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering the
Mortgage Loans secured by Mortgaged Properties located in the same jurisdiction,
if permitted by law; provided, however, that neither the applicable Custodian
nor the Trustee shall be responsible for determining whether any such assignment
is in recordable form.
Aurora:
Aurora
Loan Services LLC or its successors in interest.
Authenticating
Agent:
Any
authenticating agent appointed by the Trustee pursuant to Section
6.10.
Authorized
Officer:
Not
applicable.
Back-Up
Certification:
As
defined in Section 6.20(d)(iv).
Balance
Guaranteed Cap Agreement:
Not
applicable.
Balance
Guaranteed Cap Agreement Account:
Not
applicable.
Balloon
Mortgage Loan:
Not
applicable.
Balloon
Payment:
Not
applicable.
Bankruptcy:
As to
any Person, the making of an assignment for the benefit of creditors, the filing
of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent,
the entry of an order for relief in a bankruptcy or insolvency proceeding,
the
seeking of reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief, or seeking, consenting to or acquiescing in
the
appointment of a trustee, receiver or liquidator, dissolution, or termination,
as the case may be, of such Person pursuant to the provisions of either the
Bankruptcy Code, or any other similar state laws.
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
Basis
Risk Payment:
With
respect to any Distribution Date, the excess, if any, of (A) the sum of (1)
for
any Class of Offered Certificates (other than the Class AX Certificates), any
Basis Risk Shortfall for such Distribution Date not otherwise funded out of
amounts received on the Interest Rate Cap Agreement (in the case of the Senior
Certificates) and (2) any Unpaid Basis Risk Shortfall for such Distribution
Date
not otherwise funded out of amounts received on the Interest Rate Cap Agreement
(in the case of the Senior Certificates) over (B) the amount of payments of
Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls made to the Senior
Certificates pursuant to Section 5.02(e)(v) for such Distribution Date;
provided, however, that the amount of the Basis Risk Payment for any
Distribution Date cannot exceed the amount of Monthly Excess Cashflow otherwise
distributable in respect of the X Component of the Class X Certificates pursuant
to Section 5.02(e) hereof on such Distribution Date (as determined under the
definition of “X Component Distributable Amount” without regard to the Basis
Risk Payment for such Distribution Date).
16
Basis
Risk Reserve Fund:
A fund
created as part of the Trust Fund pursuant to Section 5.06 of this Agreement
but
which is not an asset of any of the REMICs.
Basis
Risk Shortfall:
With
respect to any Distribution Date and any Class of LIBOR Certificates and
Subordinate Certificates, the amount by which (x) the amount of interest
calculated at the Certificate Interest Rate applicable to such Class for such
date, determined without regard to the Net Funds Cap for such date, exceeds
(y)
the amount payable at the Net Funds Cap.
Benefit
Plan Opinion:
Not
applicable.
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, the Offered
Certificates and the Privately Offered Certificates constitute Book-Entry
Certificates.
Bulk
PMI Policy:
Not
applicable.
Business
Day:
Generally any day other than (i) a Saturday or Sunday, (ii) a day on which
banking institutions in New York City, New York or, if other than New York
City,
the city in which the Corporate Trust Office of the Trustee is located and
(iii)
a day on which banks in Massachusetts, Minnesota, New York or Colorado (or,
as
to any Servicer, such other states as are specified in the applicable Servicing
Agreement) are closed.
C-X
Component:
The
portion of the Class X Certificates representing the right to distributions
to
the Class X Certificates from the Interest Rate Cap Agreement.
Cap
Agreement:
Not
applicable.
Cap
Agreement Account:
Not
applicable.
Cap
Deferred Interest Amount:
Not
applicable.
Cap
Payment Date:
For so
long as any Interest Rate Cap Agreement is in effect or any amounts remain
unpaid thereunder, the Business Day prior to each Distribution
Date.
Cap
Provider:
ABN
AMRO Bank N.V.
Cap
Termination Payment:
Upon an
optional termination pursuant to Section 7.01(b), any payment required to be
made to the Cap Provider or by the Cap Provider to the Trustee pursuant to
the
terms of the Interest Rate Cap Agreement and any unpaid amounts due on previous
Cap Payment Dates and accrued interest thereon as provided in the Interest
Rate
Cap Agreement, as calculated by the Cap Provider and furnished to the
Trustee.
17
Capitalization
Reimbursement Amount:
For any
Distribution Date and with respect to any modified Mortgage Loans, the sum
of
the amounts, if any, of unreimbursed Advances and servicing advances that were
added to the Scheduled Principal Balances of such Mortgage Loans in connection
with the related modifications.
Capitalized
Interest Account:
Not
applicable.
Capitalized
Interest Amount:
Not
applicable.
Carryforward
Interest:
With
respect to any Distribution Date and any Class of LIBOR Certificates,
Subordinate Certificates or Notional Certificates, the sum of (i) 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 (ii) interest on such amount (other than, in the case
of
the Class AX Certificates, any portion of such amount resulting from Net
Negative Amortization) for the related Accrual Period at the applicable
Certificate Interest Rate. Carryforward Interest shall not include amounts
attributable to an allocation of Net Negative Amortization (except in the case
of the Class AX Certificates).
Certificate:
Any one
of the certificates signed and countersigned by the Trustee in substantially
the
forms attached hereto as Exhibit A.
Certificate
Account:
The
account maintained by the Trustee in accordance with the provisions of Section
4.04.
Certificate
Group:
Not
applicable.
Certificate
Interest Rate:
With
respect to each Class of Certificates and any Distribution Date, the applicable
per annum rate set forth or described in the Preliminary Statement
hereto.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the owner of such
Book-Entry Certificate, as reflected on the books of the Clearing Agency, or
on
the books of a Person maintaining an account with such Clearing Agency (directly
or as an indirect participant, in accordance with the rules of such Clearing
Agency).
Certificate
Principal Amount:
With
respect to any Certificate (other than the Class X, Class C and Class R
Certificates and any Notional Certificates) and any Distribution Date,
the
initial Certificate Principal Amount thereof on the Closing Date,
less
the amount of all principal distributions previously distributed with respect
to
such Certificate prior to such Distribution Date, and as reduced by any Applied
Loss Amount previously allocated thereto, plus, in the case of any Negative
Amortization Certificate, any Net Negative Amortization allocated thereto on
previous Distribution Dates; provided, however, that on each Distribution Date
on which a Subsequent Recovery is distributed, the Certificate Principal Amount
of any Certificate that has been reduced by application of an Applied Loss
Amount will be increased, in order of seniority, by an amount (to be applied
pro
rata
to all
Certificates of such Class) equal to the lesser of (1) any Deferred Amount
for
each such Class immediately prior to such date and (2) the total amount of
any
Subsequent Recovery distributed on such date to Certificateholders, after
18
application
(for this purpose) to more senior Classes of
such Certificates. The Notional Certificates, Class X, Class C and Class R
Certificates are issued without Certificate Principal Amounts.
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 6.20(d)(iv).
Certifying
Person:
As
defined in Section 6.20(d)(iv).
Class:
All
Certificates and, in the case of REMIC, all interests bearing the same Class
designation.
Class
AP Reserve Fund:
As
defined in Section 5.07(a).
Class
C Distributable Amount:
For
each Distribution Date on and prior to the Distribution Date occurring on the
X
Component Account Termination Date, an amount equal to the lesser of (a)
aggregate investment earnings on the X Component Account for the related
Collection Period and (b) the amount on deposit in the X Component Account
on
such Distribution Date, after taking into account any payments made from the
X
Component Account on such Distribution Date to the X Component of the Class
X
Certificates. On the Distribution Date occurring on the X Component Account
Termination Date, an amount equal to the entire amount remaining on deposit
in
the X Component Account after making the payments set forth in the preceding
sentence.
Class
C Mortgage Loan:
Any
Mortgage Loan which has become a Liquidated Mortgage Loan on or prior to the
Collection Period ending on March 1, 2010.
Class
CX Excess Cap Amount:
Not
applicable.
Class
I Shortfalls:
As
defined in Section 10.01(n) hereof.
Class
Notional Amount:
With
respect to the Class AX Certificates for any Distribution Date, the excess,
if
any, of (i) the aggregate Class Principal Amounts of the Senior Certificates
(other than the Class AX Certificates) immediately prior to such Distribution
Date over (ii) the amount set forth on Annex E of the prospectus supplement
for
such Distribution Date. The initial Class Notional Amount of the Class AX
Certificates is equal to $144,229,020.
Class
P Certificate:
Any
Class AP Certificate.
Class
P Reserve Funds:
The
Class AP Reserve Fund.
Class
P Interest:
Not
applicable.
Class
P Principal Amount:
Not
applicable.
19
Class
Principal Amount:
With
respect to each Class of Certificates other than the Class R, Class C and Class
X Certificates and any Notional Certificates, the aggregate of the Certificate
Principal Amounts (or related Percentage Interest therein aggregating to 100%)
of all Certificates of such Class at the date of determination. With respect
to
the Class R, Class C and Class X Certificates and any Notional Certificates,
zero.
Class
R Certificate:
The
Class R Certificate executed by the Trustee, and authenticated and delivered
by
the Certificate Registrar, substantially in the form annexed hereto as Exhibit
A
and evidencing the ownership of the residual interest in each REMIC created
hereunder.
Class
X Account:
Not
applicable.
Class
X Account Termination Date:
Not
applicable.
Class
X Current Interest:
Not
applicable.
Class
X Distributable Amount:
Not
applicable.
Class
X Interest Rate:
Not
applicable.
Class
X Notional Balance:
Not
applicable.
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:
November 30, 2007.
Code:
The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collection
Account:
A
separate account established and maintained by the Master Servicer pursuant
to
Section 4.01.
Collection
Period:
With
respect to any Distribution Date, the period commencing on the second day of
the
month immediately preceding the month in which such Distribution Date occurs
and
ending on the first day of the month in which such Distribution Date
occurs.
Commission:
The
Securities and Exchange Commission.
Compensating
Interest Payment:
With
respect to any Distribution Date and prepayments in full or in part, an amount
equal to the aggregate amount of any Prepayment Interest Shortfalls
20
with
respect to such Distribution Date required to be
paid by a Servicer up to an amount equal to the aggregate of the Servicing
Fees
received on the Mortgage Loans serviced by it. The Master Servicer shall not
be
responsible for making any Compensating Interest Payment
Component:
Not
applicable.
Component
Interest Rate:
Not
applicable.
Component
Notional Amount:
Not
applicable.
Conventional
Loan:
Not
applicable.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
Cooperative
Loan Documents:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock power
in
blank; (ii) the original executed Security Agreement and the assignment of
the
Security Agreement endorsed in blank; (iii) the original executed Proprietary
Lease and the assignment of the Proprietary Lease endorsed in blank; (iv) the
original executed Recognition Agreement and the assignment of the Recognition
Agreement (or a blanket assignment of all Recognition Agreements) endorsed
in
blank; (v) the executed UCC-1 financing statement with evidence of recording
thereon, which has been filed in all places required to perfect the security
interest in the Cooperative Shares and the Proprietary Lease; and (vi) executed
UCC-3 financing statements (or copies thereof) or other appropriate UCC
financing statements required by state law, evidencing a complete and unbroken
line from the mortgagee to the Trustee with evidence of recording thereon (or
in
a form suitable for recordation).
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
Cooperative
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single-family dwelling located in a Cooperative Property.
Corporate
Trust Office:
The
principal corporate trust office of the Trustee is located at U.S. Bank National
Association, One Federal Street, 3rd Floor, Boston, M.A. 02110, Attention:
LXS
2007-20N.
Corresponding
Class:
The
Class of Certificates that corresponds to a Class of Lower Tier Interests in
REMIC 1 and as described in the Preliminary Statement.
Countrywide
Servicing:
Countrywide Home Loans Servicing LP.
21
Coupon
Strip:
Not
applicable.
Coupon
Strip Adjusted Net WAC:
Not
applicable.
Coupon
Strip Rate:
Not
applicable.
Credit
Score:
Not
applicable.
Cumulative
Loss Trigger Event:
With
respect to any Distribution Date, a Cumulative Loss Trigger Event will have
occurred if the fraction, expressed as a percentage, obtained by dividing (x)
the sum of (i) the aggregate amount of cumulative Realized Losses incurred
on
the Mortgage Loans from the Cut-off Date through the last day of the related
Collection Period and (ii) the interest portion of any Forgiven Amount by (y)
the Cut-off Date Balance, exceeds the applicable percentages described below
with respect to such Distribution Date.
|
Distribution
Date
|
Loss
Percentage
|
|
|
December
2010 through November 2011
|
0.70%
for the
first month plus an additional 1/12
of 0.70% for each month thereafter.
|
|
|
December
2011 through November 2012
|
1.40%
for the first month plus an additional 1/12 of 0.60% for each month
thereafter.
|
|
|
December
2012 through November 2013
|
2.00%
for the first month plus an additional 1/12 of 0.50% for each month
thereafter.
|
|
|
December
2013 and thereafter
|
2.50%.
|
Current
Interest:
With
respect to any Class of LIBOR Certificates, Subordinate Certificates or Notional
Certificates and any Distribution Date, the aggregate amount of interest accrued
at the applicable Certificate Interest Rate during the related Accrual Period
on
the Class Principal Amount or Class Notional Amount of such Class immediately
prior to such Distribution Date minus the Net Negative Amortization, if any,
allocated to that Class for that Distribution Date in accordance with Section
5.02.
Custodial
Account:
Any
custodial account (other than an Escrow Account) established and maintained
by
the applicable Servicer pursuant to the applicable Servicing
Agreement.
Custodial
Agreement:
Each
custodial agreement attached as Exhibit K hereto and any custodial agreement
subsequently executed by the Trustee and acknowledged by the Master Servicer
substantially in the form thereof.
Custodian:
Each
custodian appointed by the Trustee pursuant to a Custodial Agreement, and any
successor thereto. The initial Custodians are Deutsche Bank National Trust
Company, U.S. Bank National Association and LaSalle Bank National
Association.
Cut-off
Date:
With
respect to all Mortgage Loans, November 1, 2007.
22
Cut-off
Date Balance:
With
respect to the Mortgage Loans on the Closing Date, the Pool Balance as of the
Cut-off Date.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction of the Scheduled Payment that the
related Mortgagor is obligated to pay on any Due Date as a result of, or in
connection with, any proceeding under Bankruptcy law or any similar
proceeding.
Defaulting
Party:
As
defined in the Swap Agreement.
Deferred
Amount:
For
each Distribution Date and for each Class of LIBOR Certificates and Subordinate
Certificates, the sum of (A) the amount by which (x) the aggregate of Applied
Loss Amounts previously applied in reduction of the Class Principal Amount
thereof exceeds (y) the sum of (1) the aggregate of amounts previously
distributed in reimbursement thereof and (2) the amount by which the Class
Principal Amount of such Class has been increased due to any Subsequent Recovery
and (B) for the Senior Certificates only, interest accrued on the related amount
calculated under clause (A).
Deferred
Interest Cap Account:
Not
applicable.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
under Bankruptcy law or any similar proceeding.
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Fund pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefor.
Delinquency
Event:
With
respect to any Distribution Date, a “Delinquency Event” shall occur if the
Rolling Three Month Delinquency Rate as of the last day of the immediately
preceding month equals or exceeds, for Distribution Dates prior to December
2013, 34.35%, and, for Distribution Dates during or after December 2013, 40.00%
of the Senior Enhancement Percentage for such Distribution Date.
Delinquency
Rate:
For any
month, the fraction, expressed as a percentage, the numerator of which is the
outstanding principal balance of (i) the Mortgage Loans that are 60 or more
days
Delinquent (including all Mortgage Loans 60 or more days Delinquent for which
the Mortgagor has filed for bankruptcy after the closing date), (ii) each
Mortgage Loan in foreclosure and all REO Properties as of the close of business
on the last day of such month, (iii) all Mortgage Loans repurchased within
12
months prior to such Distribution Date and (iv) all Mortgage Loans modified
within 12 months prior to such Distribution Date, and the denominator of which
is the Pool Balance as of the close of business on the last day of such
month.
Delinquent:
For
reporting purposes, a Mortgage Loan is “delinquent” when any payment
contractually due thereon has not been made by the close of business on the
Due
Date therefor.
23
Such
Mortgage Loan is “30 days Delinquent” if such
payment has not been received by the close of business on the corresponding
day
of the month immediately succeeding the month in which such payment was first
due, or, if there is no such corresponding day (e.g., as when a 30-day month
follows a 31-day month in which a payment was due on the 31st day of such
month), then on the last day of such immediately succeeding month. Similarly
for
“60 days Delinquent” and the second immediately succeeding month and “90 days
Delinquent” and the third immediately succeeding month.
Deposit
Date:
With
respect to each Distribution Date, the Business Day immediately preceding such
Distribution Date.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation, having its
principal place of business in New York, or its successors in
interest.
Determination
Date:
With
respect to each Distribution Date, the 18th day of the month in which such
Distribution Date occurs, or, if such 18th day is not a Business Day, the next
succeeding Business Day.
Disqualified
Organization:
A
“disqualified organization” as defined in Section 860E(e)(5) of the
Code.
Distressed
Mortgage Loan:
Any
Mortgage Loan that at the date of determination is Delinquent in payment for
a
period of more than 90 days or more without giving effect to any grace period
permitted by the relevant Mortgage Note or for which the Servicer has accepted
a
deed in lieu of foreclosure.
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 December 2007.
DTC:
As
defined in Section 3.01(c).
Due
Date:
With
respect to any Mortgage Loan, the date on which a Scheduled Payment is due
under
the related Mortgage Note.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies or
(ii) an account at a depository institution or trust company whose commercial
paper or other short term debt obligations (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short term debt or deposit obligations
of
such holding company or depository institution, as the case may be) have been
rated by each Rating Agency in its highest short-term rating category, or (iii)
a segregated trust account or accounts (which shall be a “special deposit
account”) maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity,
in a
manner acceptable to the Trustee, any NIMS Insurer and the Rating Agencies.
Eligible Accounts may bear interest.
Eligible
Investments:
Any one
or more of the following obligations or securities:
24
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for such
investment the commercial paper or other short term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
Xxxxxx Xxx, Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject
to Securities Investors’ Protection Corporation jurisdiction or any commercial
bank insured by the FDIC, if such broker/dealer or bank has an uninsured,
unsecured and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest short term credit rating categories of each Rating Agency (or
the highest short term credit rating of each rating agency, with respect to
the
X Component Account); provided, however, that securities issued by any
particular corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held as part of the Trust Fund to
exceed 20% of the sum of the Pool Balance and the aggregate principal amount
of
all Eligible Investments in the Certificate Account; provided, further, that
such securities will not be Eligible Investments if they are published as being
under review with negative implications from any Rating Agency;
(v) commercial
paper (including both non-interest-bearing discount obligations and interest
bearing obligations payable on demand or on a specified date not more than
180
days after the date of issuance thereof) rated by each Rating Agency in its
highest short-term rating category;
25
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest bearing or other security or investment (including those managed or
advised by the Trustee or any Affiliate thereof) (A) rated in the highest rating
category by each Rating Agency or (B) that would not adversely affect the then
current rating assigned by each Rating Agency of any of the Certificates or
the
NIM Securities and has a short-term rating of at least “A-1” or its equivalent
by each Rating Agency. Such investments in this subsection (viii) may include
money market mutual funds or common trust funds, including any fund for which
U.S. Bank National Association, in its capacity other than as Trustee, the
Master Servicer or an affiliate thereof serves as an investment advisor,
administrator, shareholder, servicing agent, and/or custodian or subcustodian,
notwithstanding that (x) U.S. Bank National Association, the Trustee, the Master
Servicer or any affiliate thereof charges and collects fees and expenses from
such funds for services rendered, (y) U.S. Bank National Association, the
Trustee, the Master Servicer, or any affiliate thereof charges and collects
fees
and expenses for services rendered pursuant to this Agreement, and (z) services
performed for such funds and pursuant to this Agreement may converge at any
time. U.S. Bank National Association or an affiliate thereof is hereby
authorized to charge and collect from the Trust Fund such fees as are collected
from all investors in such funds for services rendered to such funds (but not
to
exceed investment earnings thereon);
provided,
however, that no such instrument shall be an Eligible Investment if such
instrument evidences either (i) a right to receive only interest payments with
respect to the obligations underlying such instrument, or (ii) both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide
a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, and provided further that in order to be an Eligible
Investment any such investment must be a “permitted investment” within the
meaning of Section 860G(a)(5) of the Code.
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 would satisfy
the requirements of the Underwriter’s Exemption, except, in relevant part, for
the requirement that the certificates have received a rating at the time of
acquisition that is in one of the two highest generic rating categories by
at
least one of the Rating Agencies.
26
ERISA-Restricted
Certificate:
Any
Subordinate, Class P, Class X or Class C Certificate and any other Certificate
as long as the acquisition and holding of such other Certificate is not covered
by and exempt under the Underwriter’s Exemption.
Errors
and Omission Insurance Policy:
The
errors or omission insurance policy required to be obtained by the Servicers
satisfying the requirements of the Servicing Agreements.
Escrow
Account:
As
defined in Section 9.06(a).
Euroclear:
Euroclear Bank, S.A./N.V., as operator of the Euroclear System.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
Excess
Interest:
On any
Distribution Date, for each Class of LIBOR Certificates and the Subordinate
Certificates, the excess, if any, of (1) the amount of interest such Class
of
Certificates is entitled to receive on such Distribution Date over (2) the
amount of interest such Class of Certificates would have been entitled to
receive on such Distribution Date at an interest rate equal to the applicable
REMIC Pass-Through Rate. On any Distribution Date, for the Class AX
Certificates, the excess, if any, of (1) the amount of interest such Class
of
Certificates is entitled to receive on such Distribution Date over (2) the
amount of interest attributable to accruals on the Class LT3-AX
Interest.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
Xxxxxx
Mae:
Xxxxxx
Xxx, f/k/a the Federal National Mortgage Association, a federally chartered
and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
Fidelity
Bond:
The
fidelity bond required to be obtained by each Servicer satisfying the
requirements of the related Servicing Agreement.
Final
Maturity Reserve Account:
Not
applicable.
Final
Scheduled Distribution Date:
December 2037 or, in the case of the Class AX Certificates, November
2012.
Financial
Intermediary:
Not
applicable.
Fitch:
Fitch
Ratings, or any successor in interest.
27
Forgiven
Amount:
Any
amount of principal or delinquent interest that the related Mortgagor is no
longer required to pay as a result of any modification by the related Servicer
of the terms of the related Mortgage Note.
Form
8-K Disclosure Information:
As
defined in Section 6.20(e)(i).
Xxxxxxx
Mac:
Xxxxxxx
Mac, f/k/a the Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the
Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
Xxxxxx
Mae:
Xxxxxx
Xxx, f/k/a the Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
Grantor
Trust:
Each of
the “grantor trusts” (within the meaning of the Grantor Trust Provisions)
described in Section 10.01 herein.
Grantor
Trust Provisions:
Subpart
E of Subchapter J of the Code, including Treasury regulation section
301.7701-4(c)(2).
Guaranteed
Certificates:
Not
applicable.
Guaranteed
Distribution:
Not
applicable.
Holder
or Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or giving
any consent pursuant to this Agreement, any Certificate registered in the name
of the Depositor, the Trustee, the Master Servicer, a Servicer, the Cap Provider
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 and any NIMS Insurer
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 and any NIMS Insurer may request and conclusively rely on
certifications by the Depositor, the Master Servicer, any Servicer or the Cap
Provider, in determining whether any Certificates are registered to an Affiliate
of the Depositor, the Master Servicer, such Servicer or the Cap Provider,
respectively.
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Indenture:
An
indenture relating to the issuance of notes secured by the Class X or Class
P
Certificates (or any portion thereof) which may or may not be guaranteed by
a
NIMS Insurer.
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
28
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:
4.79%
per annum.
Initial
Optional Termination Date:
The
Distribution Date following the month in which the Pool Balance initially
declines to less than 10.00% of the Cut-off Date Balance.
Insurance
Fee Rate:
Not
applicable.
Insurance
Policy:
Any
Primary Mortgage Insurance Policy and any standard hazard insurance policy,
flood insurance policy, earthquake insurance policy or title insurance policy
relating to the Mortgage Loans or the Mortgaged Properties, to be in effect
as
of the Closing Date or thereafter during the term of this
Agreement.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i) to cover
expenses incurred by or on behalf of a Servicer or the Master Servicer in
connection with procuring such proceeds, (ii) to be applied to restoration
or
repair of the related Mortgaged Property or (iii) required to be paid over
to
the Mortgagor pursuant to state law or the related Mortgage Note.
Interest
Rate Cap Account:
The
account described in Section 5.02(h) hereof.
Interest
Rate Cap Agreement:
The
Interest Rate Cap Agreement dated as of November 30, 2007, entered into between
the Trustee on behalf of the Trust Fund (for the benefit of the holders of
the
Senior Certificates) and the Cap Provider, which agreement provides for the
monthly payment, commencing on the Distribution Date in December 2010 and
terminating on the Distribution Date in November 2012, by the Cap Provider,
but
subject to the conditions set forth therein, together with the confirmation
and
schedules relating thereto, each of which is attached hereto as Exhibit O.
The
Cap Provider will be obligated to pay to the Trust Fund at least one Business
Day prior to each Distribution Date, commencing with the Distribution Date
in
December 2010 and ending with the Distribution Date in November 2012, one
month’s interest calculated at an annual rate equal to the excess, if any, of
LIBOR over 6.75% based on a calculated notional amount as described in the
Interest Rate Cap Agreement, multiplied by the actual number of days in the
Accrual Period (treating, solely for purposes of such calculation, the initial
Accrual Period as beginning on the Closing Date and ending on the day
immediately preceding the initial Distribution Date), and divided by
360.
Interest
Remittance Amount:
With
respect to any Distribution Date, an amount equal to (a) the sum of (1) all
interest collected (other than in connection with Payaheads and Prepayment
Premiums) or advanced in respect of Scheduled Payments on the Mortgage Loans
during the related Collection Period by any Servicer, the Master Servicer or
the
Trustee (solely in its capacity as successor master servicer) minus (x) the
applicable Servicing Fee with respect to such Mortgage Loans and (y) previously
unreimbursed Advances and other amounts due to any Servicer, the Master Servicer
or the Trustee (solely in its capacity as successor master servicer), to the
extent allocable to interest and the allocable portion of previously
unreimbursed Servicing Advances with respect to the Mortgage Loans, (2) any
Compensating Interest Payments with
29
respect
to the Mortgage Loans with respect to the
related Prepayment Period, (3) the portion of any Purchase Price or Substitution
Amount paid with respect to such Mortgage Loans during the related Prepayment
Period allocable to interest and (4) all Net Liquidation Proceeds, Insurance
Proceeds and any other recoveries collected with respect to the Mortgage Loans
during the related Prepayment Period, to the extent allocable to interest,
as
reduced by (b) the amount of other costs, expenses or liabilities related to
such Mortgage Loans and reimbursable to the Master Servicer, any Servicer,
any
Custodians pursuant to the applicable Custodial Agreement or the Trustee and
as
increased by (c) the lesser of (1) the aggregate amount set forth in clauses
(a)
(1) through (5) of the definition of Principal Remittance Amount with respect
to
the Mortgage Loans for such Distribution Date and (2) the aggregate amount
of
Negative Amortization with respect to the Mortgage Loans during the related
Collection Period.
Intervening
Assignment:
As
defined in Section 2.01(b)(vi).
IRS:
The
Internal Revenue Service.
Latest
Possible Maturity Date:
The
Distribution Date occurring in December 2037.
LBH:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
LIBOR:
With
respect to the first Accrual Period, the Initial LIBOR Rate. With respect to
each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Trustee on the basis of the
“Interest Settlement Rate” set by the British Bankers’ Association (the “BBA”)
for one-month United States dollar deposits, as such rates appear on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination
Date.
If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Trustee will obtain such
rate from Reuters’ “page LIBOR 01” or Bloomberg’s page “BBAM.” If such rate is
not published for such LIBOR Determination Date, LIBOR for such date will be
the
most recently published Interest Settlement Rate. In the event that the BBA
no
longer sets an Interest Settlement Rate, the Trustee will designate an
alternative index that has performed, or that the Trustee expects to perform,
in
a manner substantially similar to the BBA’s Interest Settlement Rate. The
Trustee will select a particular index as the alternative index only if it
receives an Opinion of Counsel (a copy of which shall be furnished to any NIMS
Insurer), which opinion shall be an expense reimbursed from the Certificate
Account pursuant to Section 4.04, that the selection of such index will not
cause any of the REMICs to lose their classification as REMICs for federal
income tax purposes.
The
establishment of LIBOR by the Trustee and the Trustee’s subsequent calculation
of the Certificate Interest Rate applicable to the LIBOR Certificates for the
relevant Accrual Period, in the absence of manifest error, will be final and
binding.
LIBOR
Business Day:
Any day
on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
30
LIBOR
Certificate:
Any
Offered Certificate (other than the Notional Certificates and Subordinate
Certificates).
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period (other than the first Accrual Period) for any LIBOR Certificates or
Notional Certificates.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Master Servicer or a Servicer has
determined that all amounts that it expects to recover on behalf of the Trust
Fund from or on account of such Mortgage Loan have been recovered (exclusive
of
any possibility of a deficiency judgment).
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or a Servicer in connection
with the liquidation of any defaulted Mortgage Loan and that are not recoverable
under the applicable Primary Mortgage Insurance Policy, if any, including,
without limitation, foreclosure and rehabilitation expenses, legal expenses
and
unreimbursed amounts, if any, expended pursuant to Sections 9.06, 9.16 or
9.22.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, payment in full, discounted payoff, condemnation proceeds,
Insurance Proceeds, or otherwise, or the sale of the related Mortgaged Property
if the Mortgaged Property is acquired in satisfaction of the Mortgage Loan
by
foreclosure or deed in lieu of foreclosure, including any amounts remaining
in
the related Escrow Account.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value thereof.
Lower
Tier Interest:
Any of
the SWAP REMIC Interests, REMIC 1 Interests and REMIC 2 Interests.
M1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal Amount
of the Senior Certificates after giving effect to distributions on such
Distribution Date and after the allocation of Net Negative Amortization, if
any,
for each Distribution Date, and (ii) the Class Principal Amount of the Class
M1
Certificates after the allocation of Net Negative Amortization, if any, for
such
Distribution Date and immediately prior to such Distribution Date exceeds (y)
the M1 Target Amount.
M1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) (x) for each distribution prior to the Distribution Date in
December 2013, 85.13% and (y) thereafter, 88.10% and (ii) the Pool Balance
for
such Distribution Date determined as of the last day of the related Collection
Period immediately prior to such Distribution Date and (b) the amount, if any,
by which (1) the Pool Balance for such Distribution Date determined as of the
last day of the related Collection Period exceeds (2) the Xxxxxxxxxxxxxxxxxxxxx
Xxxxx.
00
X0
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal Amount
of the Senior Certificates and the Class M1 Certificates, in each case after
giving effect to distributions on such Distribution Date and after the
allocation of Net Negative Amortization, if any, for each Distribution Date,
and
(ii) the Class Principal Amount of the Class M2 Certificates after the
allocation of Net Negative Amortization, if any, for such Distribution Date
and
immediately prior to such Distribution Date exceeds (y) the M2 Target
Amount.
M2
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) (x) for each distribution prior to the Distribution Date in
December 2013, 87.88% and (y) thereafter, 90.30% and (ii) the Pool Balance
for
such Distribution Date determined as of the last day of the related Collection
Period immediately prior to such Distribution Date and (b) the amount, if any,
by which (1) the Pool Balance for such Distribution Date determined as of the
last day of the related Collection Period exceeds (2) the Overcollateralization
Floor.
M3
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal Amount
of the Senior Certificates and the Class M1 and Class M2 Certificates, in each
case after giving effect to distributions on such Distribution Date and after
the allocation of Net Negative Amortization, if any, for each Distribution
Date,
and (ii) the Class Principal Amount of the Class M3 Certificates after the
allocation of Net Negative Amortization, if any, for such Distribution Date
and
immediately prior to such Distribution Date exceeds (y) the M3 Target
Amount.
M3
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) (x) for each distribution prior to the Distribution Date in
December 2013, 89.63% and (y) thereafter, 91.70% and (ii) the Pool Balance
for
such Distribution Date determined as of the last day of the related Collection
Period immediately prior to such Distribution Date and (b) the amount, if any,
by which (1) the Pool Balance for such Distribution Date determined as of the
last day of the related Collection Period exceeds (2) the Overcollateralization
Floor.
M4
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal Amount
of the Senior Certificates and the Class M1, Class M2 and Class M3 Certificates,
in each case after giving effect to distributions on such Distribution Date
and
after the allocation of Net Negative Amortization, if any, for each Distribution
Date, and (ii) the Class Principal Amount of the Class M4 Certificates after
the
allocation of Net Negative Amortization, if any, for such Distribution Date
and
immediately prior to such Distribution Date exceeds (y) the M4 Target
Amount.
M4
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) (x) for each distribution prior to the Distribution Date in
December 2013, 91.13% and (y) thereafter, 92.90% and (ii) the Pool Balance
for
such Distribution Date determined as of the last day of the related Collection
Period immediately prior to such
32
Distribution
Date and (b) the amount, if any, by which
(1) the Pool Balance for such Distribution Date determined as of the last day
of
the related Collection Period exceeds (2) the Overcollateralization
Floor.
M5
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal Amount
of the Senior Certificates and the Class M1, Class M2, Class M3 and Class M4
Certificates, in each case after giving effect to distributions on such
Distribution Date and after the allocation of Net Negative Amortization, if
any,
for each Distribution Date, and (ii) the Class Principal Amount of the Class
M5
Certificates after the allocation of Net Negative Amortization, if any, for
such
Distribution Date and immediately prior to such Distribution Date exceeds (y)
the M5 Target Amount.
M5
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) (x) for each distribution prior to the Distribution Date in
December 2013, 92.38% and (y) thereafter, 93.90% and (ii) the Pool Balance
for
such Distribution Date determined as of the last day of the related Collection
Period immediately prior to such Distribution Date and (b) the amount, if any,
by which (1) the Pool Balance for such Distribution Date determined as of the
last day of the related Collection Period exceeds (2) the Overcollateralization
Floor.
M6
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal Amount
of the Senior Certificates and the Class M1, Class M2, Class M3, Class M4 and
Class M5 Certificates, in each case after giving effect to distributions on
such
Distribution Date and after the allocation of Net Negative Amortization, if
any,
for each Distribution Date, and (ii) the Class Principal Amount of the Class
M6
Certificates after the allocation of Net Negative Amortization, if any, for
such
Distribution Date and immediately prior to such Distribution Date exceeds (y)
the M6 Target Amount.
M6
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) (x) for each distribution prior to the Distribution Date in
December 2013, 93.63% and (y) thereafter, 94.90% and (ii) the Pool Balance
for
such Distribution Date determined as of the last day of the related Collection
Period immediately prior to such Distribution Date and (b) the amount, if any,
by which (1) the Pool Balance for such Distribution Date determined as of the
last day of the related Collection Period exceeds (2) the Overcollateralization
Floor.
Master
Servicer:
Aurora
Loan Services LLC, or any successor in interest, or if any successor master
servicer shall be appointed as herein provided, then such successor master
servicer.
Master
Servicing Fee:
As to
any Distribution Date, an amount equal to one-twelfth the product of (a) the
Master Servicing Fee Rate and (b) the outstanding principal balance of each
Mortgage Loan.
33
Master
Servicing Fee Rate:
0.00%
per annum.
Material
Defect:
As
defined in Section 2.02(c) hereof.
Maximum
Rate:
For any
Mortgage Loan, the rate specified in the related Mortgage Note that the related
mortgage rate will never exceed.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the Mortgage Note.
Monthly
Excess Cashflow:
With
respect to any Distribution Date, the sum of (x) the Monthly Excess Interest
for
such date, (y) Overcollateralization Release Amount for such date and (z) that
portion, if any, of the Principal Distribution Amount for such date available
for distribution pursuant to Section 5.02(c)(i)(E) or Section 5.02(c)(ii)(I)
hereof.
Monthly
Excess Interest:
With
respect to any Distribution Date, that portion, if any, of the Interest
Remittance Amount available for distribution pursuant to Section 5.02(b)(v)
hereof for such date.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor in interest.
Mortgage:
A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note, together with improvements
thereto.
Mortgage
File:
As
defined in Section 2.01(b).
Mortgage
Loan:
A
Mortgage and the related notes or other evidences of indebtedness secured by
each such Mortgage conveyed, transferred, sold, assigned to or deposited with
the Trustee pursuant to Section 2.01 or Section 2.05, including without
limitation, each Mortgage Loan listed on the Mortgage Loan Schedule, as amended
from time to time.
Mortgage
Loan Sale Agreement:
The
mortgage loan sale and assignment agreement dated as of November 1, 2007 for
the
sale of the Mortgage Loans by the Seller to the Depositor.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Fund.
Such
schedule shall consist of the following information with respect to each
Mortgage Loan: (i) the Mortgage Loan identifying number; (ii) the city, state
and zip code; (iii) the original principal amount of the Mortgage Loan; (iv)
the
Mortgage Rate at origination; (v) the monthly payment of principal and interest
at origination; (vi) the Seller of such Mortgage Loan to the Depositor; (vii)
the Servicer servicing such Mortgage Loan and the applicable Servicing Fee
Rate;
(viii) the applicable prepayment premium, if any, and the method of calculation
and (ix) the Custodian with respect to the Mortgage File
related to such Mortgage Loan. The Depositor shall be
34
responsible
for providing the Trustee and the Master
Servicer with all amendments to the Mortgage Loan Schedule.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
under a Mortgage Loan.
Mortgage
Pool:
The
pool of mortgage loans consisting of the Mortgage Loans.
Mortgage
Rate:
As to
any Mortgage Loan, the per annum rate at which interest accrues on such Mortgage
Loan, determined under in the related Mortgage Note as reduced by any Relief
Act
Reductions.
Mortgaged
Property:
Either
of (x) the fee simple interest in real property, together with improvements
thereto including any exterior improvements to be completed within 120 days
of
disbursement of the related Mortgage Loan proceeds, or (y) in the case of a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Negative
Amortization:
With
respect to each Distribution Date, the amount of interest on the Mortgage Loans
that the related Mortgagors are not obligated to pay as interest (and which
shall be added to the Scheduled Principal Balance of each such Mortgage Loan)
due to the negative amortization feature of such Mortgage Loans, in each case
during the related Collection Period.
Negative
Amortization Certificate:
Any
Certificate (other than a Class R Certificate or Notional
Certificate).
Net
Funds Cap:
For
each Distribution Date and the Senior Certificates (other than the Class AX
Certificates), an annual rate equal to (a) a fraction, expressed as a
percentage, the numerator of which is the product of (1) the excess, if any,
of
(x) the Optimal Interest Remittance Amount for such Distribution Date over
(y)
the amount of any Net Swap Payment or Swap Termination Payment not due to a
Swap
Counterparty Trigger Event owed to the Swap Counterparty on the related due
date
and (2) 12, and the denominator of which is the Pool Balance as of the first
day
of the related Collection Period (not including for this purpose Mortgage Loans
for which prepayments in full have been received and distributed in the month
prior to that Distribution Date), multiplied by (b) a fraction, the numerator
of
which is 30 and the denominator of which is the actual number of days in the
Accrual Period related to such Distribution Date. For each Distribution Date
and
the Subordinate Certificates, an annual rate equal to a fraction, expressed
as a
percentage, the numerator of which is the product of (1) the excess, if any,
of
(x) the Optimal Interest Remittance Amount for such Distribution Date over
(y)
the amount of any Net Swap Payment or Swap Termination Payment not due to a
Swap
Counterparty Trigger Event owed to the Swap Counterparty on the related due
date
and (2) 12, and the denominator of which is the Pool Balance as of the first
day
of the related Collection Period (not including for this purpose Mortgage Loans
for which prepayments in full have been received and distributed in the month
prior to that Distribution Date).
35
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds net
of
(i) unreimbursed expenses and (ii) any unreimbursed Advances, if any, received
and retained in connection with the liquidation of such Mortgage
Loan.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by the
applicable Servicing Fee Rate and any mortgage insurance premium rate, as
applicable.
Net
Negative Amortization:
With
respect to any Distribution Date, the excess, if any, of (i) the Negative
Amortization with respect to all Mortgage Loans for the calendar month prior
to
that Distribution Date, over (ii) the aggregate amount of all scheduled monthly
principal payments received with respect to all Mortgage Loans during the
related Collection Period, prepayments in full and partial prepayments received
with respect to all Mortgage Loans during the related Prepayment Period
(including principal received in connection with the repurchase of a Mortgage
Loan from the Trust Fund and all other principal received other than scheduled
monthly payments) and recoveries in respect of the Mortgage Loans received
during the related Prepayment Period.
Net
Prepayment Interest Shortfall:
With
respect to any Deposit Date and any Class of Certificates, the excess, if any,
of any Prepayment Interest Shortfalls with respect to the Mortgage Loans for
such date over (i) any Prepayment Interest Excess with respect to such Mortgage
Loans for such date, if any, and (ii) any amounts paid with respect to such
shortfalls by a Servicer pursuant to the applicable Servicing Agreement or
by
the Master Servicer.
Net
Rate:
For
each Distribution Date, an annual rate equal to (a) a fraction, expressed as
a
percentage, the numerator of which is the product of (1) the Optimal Interest
Remittance Amount for such Distribution Date and (2) 12, and the denominator
of
which is the Pool Balance as of the first day of the related Collection Period
(not including for this purpose Mortgage Loans for which prepayments in full
have been received and distributed in the month prior to that Distribution
Date), multiplied by (b) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the Accrual Period related
to such Distribution Date.
Net
Swap Payment:
With
respect to each Distribution Date, the net payment required to be made one
Business Day prior to each Distribution Date pursuant to the terms of the Swap
Agreement, which net payment shall not take into account any Swap Termination
Payment, and any unpaid amounts due on previous Swap Payment Dates and accrued
interest thereon as provided in the Swap Agreement, as calculated by the Swap
Counterparty and furnished to the Trustee.
Net
WAC:
For
each Distribution Date, the weighted average of the Net Mortgage Rates of the
Mortgage Loans at the beginning of the related Collection Period, weighted
on
the basis of their Scheduled Principal Balances at the beginning of the related
Collection Period.
NIM
Redemption Amount:
As
defined in Section 7.01(b).
NIM
Securities:
Any net
interest margin securities issued subsequent to the Closing Date by an owner
trust or other special purpose entity, the principal assets of such trust or
other entity
36
including
the Class X or Class P Certificates and the
payments received thereon, which principal assets back such
securities.
NIMS
Agreement:
Not
applicable.
NIMS
Insurer:
One or
more insurers issuing financial guaranty insurance policies in connection with
the issuance of NIM Securities.
Non-Book-Entry
Certificate:
Not
applicable.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Non-permitted
Foreign Holder:
As
defined in Section 3.03(f).
Non-U.S.
Person:
Any
person other than a “United States person” within the meaning of Section
7701(a)(30) of the Code.
Nonpayment:
Not
applicable.
Notional
Amount:
Not
applicable.
Notional
Certificate:
Any
Class AX Certificate.
Offered
Certificates:
Collectively, the Class A1, Class A2, Class A3, Class AX, Class M1, Class M2,
Class M3, Class M4, Class M5 and Class M6 Certificates.
Offered
Subordinate Certificates:
Not
applicable.
Offering
Document:
Either
of the private placement memorandum, dated November 30, 2007, relating to the
Privately Offered Certificates or the Prospectus.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Trustee, and who may be in house or outside counsel to the Depositor, the Master
Servicer or the Servicer but which must be Independent outside counsel with
respect to any such opinion of counsel concerning the transfer of any Residual
Certificate or concerning certain matters with respect to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or the taxation,
or the federal income tax status, of each REMIC.
Optimal
Interest Remittance Amount:
With
respect to each Distribution Date, the product of (A) (x) the weighted average
of the Net Mortgage Rates for the Mortgage Loans (based on their Scheduled
Principal Balances as of the first day of the related Collection Period) divided
by (y) 12 and (B) the Pool Balance as of the first day of the related Collection
Period (not including for this purpose Mortgage Loans for which prepayments
in
full have been received and distributed in the month prior to that Distribution
Date).
37
Original
Loan-to-Value Ratio:
Not
applicable.
Original
Value:
The
lesser of (a) the Appraised Value of a Mortgaged Property at the time the
related Mortgage Loan was originated and (b) if the Mortgage Loan was made
to
finance the acquisition of the related Mortgaged Property, the purchase price
paid for the Mortgaged Property by the Mortgagor at the time the related
Mortgage Loan was originated.
Overcollateralization
Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the Pool
Balance for such Distribution Date determined as of the last day of the related
Collection Period exceeds (y) the aggregate Class Principal Amount of the LIBOR
Certificates and Subordinate Certificates, after giving effect to distributions
on such Distribution Date.
Overcollateralization
Deficiency:
With
respect to any Distribution Date, the amount, if any, by which (x) the Targeted
Overcollateralization Amount for such Distribution Date exceeds (y) the
Overcollateralization Amount for such Distribution Date, calculated for this
purpose after giving effect to the reduction on such Distribution Date of the
aggregate Certificate Principal Amount of the LIBOR Certificates and Subordinate
Certificates resulting from the distribution of the Principal Distribution
Amount on such Distribution Date but prior to allocation of any Applied Loss
Amount on such Distribution Date.
Overcollateralization
Floor:
With
respect to any Distribution Date, $8,255,754 (1.80% of the Cut-off Date
Balance).
Overcollateralization
Release Amount:
With
respect to any Distribution Date, the lesser of (x) the Principal Remittance
Amount for such Distribution Date and (y) the amount, if any, by which (1)
the
Overcollateralization Amount for such Distribution Date (calculated for this
purpose on the basis of the assumption that 100% of the Principal Remittance
Amount for such date is applied on such Distribution Date in reduction of the
aggregate Certificate Principal Amount of the LIBOR Certificates and Subordinate
Certificates), exceeds (2) the Targeted Overcollateralization Amount for such
Distribution Date.
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Scheduled Payment
received by the Servicer during any Collection Period in addition to the
Scheduled Payment due on such Due Date, intended by the related Mortgagor to
be
applied on a subsequent Due Date or Due Dates.
Paying
Agent:
Any
paying agent appointed pursuant to Section 3.08.
PCAOB:
The
Public Company Accounting Oversight Board.
Percentage
Interest:
With
respect to any Certificate, its percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the same
Class as such Certificate. With respect to any Certificate other than the Class
X, Class C, Class P and Class R Certificates, the Percentage Interest evidenced
thereby shall equal the initial Certificate Principal Amount thereof divided
by
the initial Class Principal Amount of all Certificates of the same Class. With
respect to the Class X, Class C, Class P and Class R
38
Certificates,
the Percentage Interest evidenced thereby
shall be as specified on the face thereof, or otherwise be equal to
100%.
Permitted
Servicing Amendment:
Any
amendment to a Servicing Agreement pursuant to Section 11.03(a)(iii) hereunder
in connection with any servicing transfer or transfer of any servicing
rights.
Permitted
Transferee:
As
defined in Section 3.03(f).
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:
As
defined in Section 3.03(d).
Plan
Asset Regulations:
Not
applicable.
Pool
Assets:
As
defined in Section 7.01(b).
Pool
Balance:
For any
Distribution Date or the Cut-off Date, the sum of the Scheduled Principal
Balances of the Mortgage Loans for that date.
Pool
Percentage:
Not
applicable.
Prepayment
Interest Excess:
With
respect to any Distribution Date and any Principal Prepayment in full received
on the Mortgage Loans serviced by Aurora from the first day through the
sixteenth day of the month during which such Distribution Date occurs, all
amounts paid in respect of interest at the applicable Net Mortgage Rate on
such
Principal Prepayment in full.
Prepayment
Interest Shortfall:
With
respect to any Distribution Date and any Principal Prepayment, the difference
between (i) one full month’s interest at the applicable Net Mortgage Rate (after
giving effect to any applicable Relief Act Reduction) on the outstanding
principal balance of such Mortgage Loan immediately prior to such prepayment
and
(ii) the amount of interest actually received with respect to such Mortgage
Loan
in connection with such Principal Prepayment.
Prepayment
Period:
With
respect to any Distribution Date and (i) any Principal Prepayment in part
received by Aurora, the calendar month immediately preceding the month in which
such Distribution Date occurs; (ii) any Principal Prepayments in full for
Mortgage Loans serviced by Aurora, the seventeenth day (or, in the case of
the
first Distribution Date, the 1st
day) of
the calendar month immediately preceding the month in which such Distribution
Date occurs through the sixteenth day of the calendar month in which such
Distribution Date occurs; and (iii) any Principal Prepayments in full or in
part
for Countrywide Servicing, the 2nd day of the calendar month immediately
preceding the month in which such Distribution Date occurs through the first
day
of the calendar month in which such Distribution Date occurs.
39
Prepayment
Premiums:
With
respect to any Distribution Date, all premiums or charges paid by the obligors
under the related Mortgage Notes due to Principal Prepayments and required
to be
remitted to the Custodial Accounts pursuant to the Servicing Agreements and
are
remitted to the Collection Account during the immediately preceding Prepayment
Period, if any.
Primary
Mortgage Insurance Policy:
Any
mortgage guaranty insurance, if any, on an individual Mortgage Loan as evidenced
by a policy or certificate, whether such policy is obtained by the originator,
the lender or the borrower.
Principal
Distribution Amount:
With
respect to any Distribution Date, an amount equal to the Principal Remittance
Amount for such date minus the Overcollateralization Release Amount, if any,
for
such Distribution Date.
Principal
Prepayment:
Any
Mortgagor payment of principal or other recovery of principal on a Mortgage
Loan
that is recognized as having been received or recovered in advance of its
scheduled Due Date and applied to reduce the principal balance of the Mortgage
Loan in accordance with the terms of the Mortgage Note or the applicable
Servicing Agreement.
Principal
Remittance Amount:
With
respect to any Distribution Date, an amount equal to (a) the sum of (1) all
principal collected (other than in connection with Payaheads) or advanced in
respect of Scheduled Payments on the Mortgage Loans during the related
Collection Period whether by a Servicer, the Master Servicer or the Trustee
in
its capacity as successor master servicer (less unreimbursed Advances due to
the
Master Servicer, the applicable Servicer or the Trustee, in its capacity as
successor master servicer, with respect to the Mortgage Loans, to the extent
allocable to principal, and any unreimbursed Servicing Advances), (2) all
Principal Prepayments in full or in part received during the related Prepayment
Period with respect to the Mortgage Loans, (3) the outstanding principal balance
of each Mortgage Loan that was repurchased by the Seller or the related
Transferor during the related Prepayment Period or any NIMS Insurer (in the
case
of certain Mortgage Loans 90 days or more delinquent), (4) the principal portion
of any Substitution Amount paid with respect to any Deleted Mortgage Loan during
the related Prepayment Period allocable to principal and (5) all Net Liquidation
Proceeds, Insurance Proceeds, any Subsequent Recovery and other recoveries
collected with respect to the Mortgage Loans during the related Prepayment
Period, to the extent allocable to principal, as reduced (but not by more than
the sum of items (1) through (5) above) by the aggregate amount of Negative
Amortization with respect to the Mortgage Loans during the related Collection
Period, reduced by (b) other costs, expenses or liabilities reimbursable to
the
Trustee, the Master Servicer and any Servicer to the extent provided in this
Agreement and the applicable Servicing Agreement or to a Custodian pursuant
to
the applicable Custodial Agreement from the Interest Remittance Amount described
in clause (b) of the definition thereof and not reimbursed therefrom or
otherwise.
Privately
Offered Certificates:
The
Class AP Certificates.
Proceeding:
Not
applicable.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
40
Prospectus:
The
prospectus supplement dated November 29, 2007 together with the accompanying
prospectus dated November 26, 2007, relating to the Offered
Certificates.
PTCE:
As
defined in Section 3.03(d).
Purchase
Price:
With
respect to the purchase of a Mortgage Loan or related REO Property pursuant
to
this Agreement, an amount equal to the sum of (a) 100% of the unpaid principal
balance of such Mortgage Loan, (b) accrued interest thereon at the applicable
Mortgage Rate, from the date as to which interest was last paid to (but not
including) the Due Date in the Collection Period immediately preceding the
related Distribution Date; (c) any unreimbursed Servicing Advances with respect
to such Mortgage Loan; (d) any costs and damages incurred by the Trust Fund
with
respect to such Mortgage Loan in connection with any violation of any federal,
state or local predatory or abusive lending laws or other similar laws; and
(e)
the fair market value of all other property being purchased (reduced, in the
case of REO Property relating to the Mortgage Loans, by (1) reasonably
anticipated disposition costs and (2) any amount by which the fair market value
as so reduced exceeds the outstanding principal balance of the related Mortgage
Loan). The Master Servicer and the Servicer (or the Trustee, in its capacity
as
successor master servicer, if applicable) shall be reimbursed from the Purchase
Price for any Mortgage Loan or related REO Property for any Advances made or
other amounts advanced with respect to such Mortgage Loan that are reimbursable
to the Master Servicer or the Servicer under this Agreement or the Servicing
Agreement (or to the Trustee hereunder in its capacity as successor master
servicer), together with any accrued and unpaid compensation due to the Master
Servicer, the Servicer or the Trustee hereunder or thereunder.
QIB:
As
defined in Section 3.03(c).
QIB-Restricted
Certificate:
Any
Class C or Class P Certificate.
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account or the Certificate Account and insuring a
minimum, fixed or floating rate of return on investments of such funds, which
contract or surety bond shall:
(i) be
an
obligation of an insurance company or other corporation whose long term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long term debt, whose claims paying ability is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(ii) provide
that the Trustee may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
(iii) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Certificates or the NIM Securities, the Trustee shall terminate such contract
without penalty and be entitled to the return of all funds previously invested
thereunder, together with accrued interest thereon at the interest rate provided
under such contract to the date of delivery of such funds to the
Trustee;
41
(iv) provide
that the Trustee’s interest therein shall be transferable to any successor
trustee hereunder; and
(v) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account or the Certificate Account, as the case may be, not
later than the Business Day prior to any Distribution Date.
Qualified
Insurer:
Not
applicable.
Qualifying
Substitute Mortgage Loan:
In the
case of a Mortgage Loan substituted for a Deleted Mortgage Loan pursuant to
the
terms of this Agreement, a Mortgage Loan that, on the date of such substitution,
(i) has an outstanding Scheduled Principal Balance (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate Scheduled Principal Balance), after application of all Scheduled
Payments due during or prior to the month of substitution, not in excess of,
and
not more than 5% less than, the outstanding Scheduled Principal Balance of
the
Deleted Mortgage Loan as of the Due Date in the calendar month during which
the
substitution occurs, (ii) has a Mortgage Rate not less than the Mortgage Rate
on
the Deleted Mortgage Loan, (iii) if applicable, has a maximum Mortgage Rate
not
less than the maximum Mortgage Rate on the Deleted Mortgage Loan, (iv) if
applicable, has a minimum Mortgage Rate not less than the minimum Mortgage
Rate
of the Deleted Mortgage Loan, (v) if applicable, has a gross margin equal to
or
greater than the gross margin of the Deleted Mortgage Loan, (vi) is not a
Cooperative Loan unless the related Deleted Mortgage Loan was a Cooperative
Loan, (vii) if applicable, has a next adjustment date not later than the next
adjustment date on the Deleted Mortgage Loan, (viii) has the same Due Date
as
the Deleted Mortgage Loan, (ix) has a remaining stated term to maturity not
longer than 18 months and not more than 18 months shorter than the remaining
stated term to maturity of the related Deleted Mortgage Loan, (x) is current
as
of the date of substitution, (xi) has a Loan-to-Value Ratio as of the date
of
substitution equal to or lower than the Loan-to-Value Ratio of the Deleted
Mortgage Loan as of such date, (xii) has been underwritten by a Transferor
in
accordance with the same underwriting criteria and guidelines as the Deleted
Mortgage Loan, (xiii) has a risk grading determined by the Seller at least
equal
to the risk grading assigned on the Deleted Mortgage Loan, (xiv) is secured
by
the same property type as the Deleted Mortgage Loan, (xv) conforms to each
representation and warranty applicable to the Deleted Mortgage Loan made in
the
Mortgage Loan Sale and Assignment Agreement, (xvi) has the same or higher lien
position as the Deleted Mortgage Loan, (xvii) is covered by a Primary Mortgage
Insurance Policy if the Deleted Mortgage Loan was so covered and (xviii)
contains provisions covering the payment of Prepayment Premium by the Mortgagor
for early prepayment of the Mortgage Loan at least as favorable as the Deleted
Mortgage Loan. In the event that one or more mortgage loans are substituted
for
one or more Deleted Mortgage Loans, the amounts described in clause (i) hereof
shall be determined on the basis of aggregate Scheduled Principal Balances,
the
Mortgage Rates described in clause (ii) hereof shall be determined on the basis
of weighted average Mortgage Rates, the risk gradings described in clause (xiii)
hereof shall be satisfied as to each such mortgage loan, the terms described
in
clause (ix) hereof shall be determined on the basis of weighted average
remaining term to maturity, the Loan-to-Value Ratios described in clause (xi)
hereof shall be satisfied as to each such mortgage loan and, except to the
extent otherwise provided in this sentence, the representations and warranties
described in clause (xv) hereof must
42
be
satisfied as to each Qualified Substitute Mortgage
Loan or in the aggregate, as the case may be.
Rate
of Payment:
For
each Distribution Date, the rates of payment set forth in Schedule B
hereto.
Rating
Agency:
Each of
Fitch and S&P.
Realized
Loss:
With
respect to each Liquidated Mortgage Loan, an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation, minus
(ii) Liquidation Proceeds received, to the extent allocable to principal, net
of
amounts that are reimbursable therefrom to the Master Servicer or the Servicer
with respect to such Mortgage Loan (other than Advances of principal) including
expenses of liquidation. In determining whether a Realized Loss is a Realized
Loss of principal, Liquidation Proceeds shall be allocated, first, to payment
of
expenses related to such Liquidated Mortgage Loan, then to accrued unpaid
interest and finally to reduce the principal balance of the Mortgage Loan.
Realized Losses may be increased by the principal portion of any Forgiven Amount
for the Distribution Date related to the Collection Period in which the
modification has occurred.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Record
Date:
With
respect to the Book-Entry Certificates (other than the Class AP Certificates
and
Subordinate Certificates) and any Distribution Date, the close of business
on
the Business Day immediately preceding such Distribution Date. With respect
to
the Subordinate Certificates, the close of business on the last Business Day
of
the month immediately before the month in which the Distribution Date occurs.
With respect to the Class C, Class X, Class AP and Class R Certificates 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 otherwise be provided by the Commission or its staff
from
time to time; and all references to any rule, item, section or subsection of,
or
definition or term contained in, Regulation AB mean such rule, item, section,
subsection, definition or term, as the case may be, or any successor thereto,
in
each case as the same may be amended from time to time.
Regulation
S:
Regulation S promulgated under the Act or any successor provision thereto,
in
each case as the same may be amended from time to time; and all references
to
any rule, section or subsection of, or definition or term contained in,
Regulation S means such rule, section, subsection, definition or term, as the
case may be, or any successor thereto, in each case as the same may be amended
from time to time.
43
Regulation
S Global Security:
As
defined in Section 3.01(d).
Related
Certificates:
For any
REMIC 2 Interest, the Class of Certificates set forth on the same row in the
table under “REMIC 2” in the Preliminary Statement hereto. For any REMIC 3
Interest, the Class of Certificates set forth on the same row in the table
under
“REMIC 3” in the Preliminary Statement hereto.
Related
Mortgage Pool:
For any
REMIC 1 Interest, the Mortgage Pool set forth on the same row in the table
under
“REMIC 1” in the Preliminary Statement hereto.
Related
REMIC 2 Interest:
For any
Related Certificates, the REMIC 2 Interest set forth on the same row in the
table under “REMIC 2” in the Preliminary Statement hereto.
Related
REMIC 3 Interest:
For any
Related Certificates, the REMIC 3 Interest set forth on the same row in the
table under “REMIC 3” in the Preliminary Statement hereto.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit R attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Trustee, each Custodian, the Paying Agent or each Servicer, the
term “Relevant Servicing Criteria” may refer to a portion of the Relevant
Servicing Criteria applicable to such parties.
Relief
Act:
The
Servicemembers Civil Relief Act, as amended, and any similar state or local
law
or regulation.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of interest collectible thereon as a result of application of the Relief
Act, any amount by which interest collectible on such Mortgage Loan for the
Due
Date in the related Collection Period is less than interest accrued thereon
for
the applicable one-month period at the Mortgage Rate without giving effect
to
such reduction.
REMIC:
Each of
the SWAP REMIC, REMIC 1, REMIC 2 and REMIC 3, as described in the Preliminary
Statement hereto.
REMIC
1:
As
described in the Preliminary Statement.
REMIC
1 Interest:
Any one
of the Classes of REMIC 1 Interests described in the Preliminary Statement
hereto.
REMIC
1 Marker Classes:
Any of
the REMIC 1 Regular Interests other than (i) the Class LT1-X Interest and (ii)
the Class LT1-IO Interest.
REMIC
1 Regular Interest:
Any of
the REMIC 1 Interests other than the Class LT1-R Interest.
REMIC
2:
As
described in the Preliminary Statement.
44
REMIC
2 Interest:
Any one
of the Classes of REMIC 2 Interests described in the Preliminary Statement
hereto.
REMIC
2 Regular Interest:
Any of
the REMIC 2 Interests other than the Class LT2-R Interest.
REMIC
3:
As
described in the Preliminary Statement.
REMIC
3 Interest:
Any one
of the Classes of REMIC 3 Interests described in the Preliminary Statement
hereto.
REMIC
3 Regular Interest:
Any of
the REMIC 3 Interests other than the Residual Interest.
REMIC
Cap:
For
each of the Class LT3-A1, Class LT3-A2, Class LT3-A3, Class LT3-M1, Class
LT3-M2, Class LT3-M3, Class LT3-M4, Class LT3-M5 and Class LT3-M6 Interests,
the
REMIC Net Rate (multiplied, in the case of any such interest the Class of
Related Certificates of which accrues interest on a “30/360” basis, by a
fraction the numerator of which is the actual number of days in the related
Accrual Period and the denominator of which is 30).
REMIC
Net Rate:
The per
annum rate set forth in footnote 1 to the description of REMIC 1 in the
Preliminary Statement hereto (such rate being based on the weighted average
of
the interest rates on the SWAP REMIC Regular Interests as adjusted and as set
forth in such footnote).
REMIC
Pass Through Rate:
With
respect to any Distribution Date and any Class of LIBOR Certificates and
Subordinate Certificates, the REMIC Cap for such Distribution Date for the
Related REMIC 3 Interest.
REMIC
Provisions:
The
provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and regulations, including
proposed regulations and rulings, and administrative pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
REMIC
Swap Rate:
For
each Distribution Date (and the related Accrual Period), a per annum rate equal
to the rate used to compute the monthly gross amount due to the Swap
Counterparty under the Swap Agreement for such Distribution Date (such rate,
as
described in the Prospectus, being the Rate of Payment set forth in Annex D
of
the Prospectus).
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or deed in
lieu of foreclosure in connection with a defaulted Mortgage Loan or otherwise
treated as having been acquired pursuant to the REMIC Provisions.
Replacement
Receipts:
Not
applicable.
Replacement
Receipts Account:
Not
applicable.
45
Reportable
Event:
As
defined in Section 6.20(e)(i).
Reporting
Servicer:
As
defined in Section 6.20(d)(i).
Repurchase
Price:
As
defined in Section 7.01(b).
Required
Reserve Fund Amount:
Not
applicable.
Residual
Certificates:
The
Class R Certificates.
Residual
Interest:
An
interest in REMIC 3 that is entitled to all distributions on the Class R
Certificate other than distributions in respect of the Class LT2-R Interest,
Class LT1-R Interest and Class SW-R Interest.
Responsible
Officer:
When
used with respect to the Trustee, any Vice President, Assistant Vice President,
the Secretary, any assistant secretary, or any officer, working in its Corporate
Trust Office and having direct responsibility for the administration of this
Agreement, and any other officer to whom a matter arising under this Agreement
may be referred.
Restricted
Certificate:
Any
Class X, Class C, Class P or Class R Certificate.
Restricted
Global Security:
As
defined in Section 3.01(c).
Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, the average of the Delinquency Rates for
each
of the three (or one and two, in the case of the first and second Distribution
Dates, respectively) immediately preceding calendar months.
Rules:
As
defined in Section 6.20(c)(i).
S-X
Component:
The
portion of the Class X Certificates representing the right to distributions
to
the Class X Certificates from the Swap Agreement.
S&P:
Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies,
Inc., or any successor in interest.
Scheduled
Notional Amount:
For
each Distribution Date, the amount set forth on Schedule B.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction
or as a result of any related Deficient Valuation (in each case, excluding
all
amounts of principal and interest that were due on or before the Cut-off Date
whenever received) and, in the case of an REO Property, an amount equivalent
to
the Scheduled Payment that would have been due on the related Mortgage Loan
if
such Mortgage Loan had remained in existence.
Scheduled
Principal Balance:
With
respect to (i) any Mortgage Loan as of any Distribution Date, the principal
balance of such Mortgage Loan at the close of business on the
46
Cut-off
Date after giving effect to principal payments
due on or before the Cut-off Date, whether or not received, less an amount
equal
to principal payments due after the Cut-off Date, and on or before the Due
Date
in the related Collection Period, whether or not received from the Mortgagor
or
advanced by the applicable Servicer or the Master Servicer, and all amounts
received thereon which are allocable to unscheduled principal payments
(including Principal Prepayments, Liquidation Proceeds, Insurance Proceeds
and
condemnation proceeds, in each case to the extent identified and applied prior
to or during the related Prepayment Period) and as increased by the amounts
of
any Negative Amortization with respect to such Mortgage Loan after the Cut-off
Date through the Due Date in the related Collection Period and (ii) any REO
Property as of any Distribution Date, the Scheduled Principal Balance of the
related Mortgage Loan on the Due Date immediately preceding the date of
acquisition of such REO Property by or on behalf of the Trustee (reduced by
any
amount applied as a reduction of principal on the Mortgage Loan). With respect
to any Mortgage Loan and the Cut-off Date, as specified in the Mortgage Loan
Schedule. The Scheduled Principal Balance of a Liquidated Mortgage Loan shall
be
zero.
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
Seller:
Xxxxxx
Brothers Holdings Inc. or any successor in interest thereto.
Senior
Certificates:
The
Class A1, Class A2, Class A3 and Class AX Certificates.
Senior
Enhancement Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is the sum of the aggregate Class Principal Amount of the
Subordinate Certificates and the Overcollateralization Amount (which amount,
for
purposes of this definition only, shall not be less than zero and assuming
for
purposes of this definition that the Principal Distribution Amount has been
distributed on such Distribution Date and no Trigger Event has occurred) and
the
denominator of which is the Pool Balance for such Distribution Date, in each
case after giving effect to distributions on such Distribution
Date.
Senior
Principal Distribution Amount:
With
respect to any Distribution Date (a) prior to the Stepdown Date or if a Trigger
Event is in effect with respect to such Distribution Date, 100% of the Principal
Distribution Amount for such Distribution Date and (b) on or after the Stepdown
Date and as long as a Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the aggregate Class
Principal Amount of each Class of Senior Certificates after the allocation
of
Net Negative Amortization, if any, for each Distribution Date and immediately
prior to distributions on such Distribution Date exceeds (y) the Senior Target
Amount.
Senior
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (1) (i) for each distribution prior to the Distribution Date in
December 2013, 79.63%; and (ii) thereafter, 83.70% and (2) the Pool Balance
for
such Distribution Date determined as of the last day of the related Collection
Period and (b) the amount, if any, by which (1) the Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
exceeds (2) the Overcollateralization Floor.
47
Servicer:
Each
Servicer that has entered into one of the Servicing Agreements attached as
Exhibit E hereto, or any successor in interest. Initially, the Servicers are
Aurora and Countrywide Servicing.
Service(s)(ing):
In
accordance with Regulation AB, the act of managing or collecting payments on
the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer” set forth in Item 1101 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicer
Remittance Date:
The day
in each calendar month on which the applicable Servicer is required to remit
payments to the Collection Account, as specified in the related Servicing
Agreement, which is the 18th day of each month (or if such 18th day is not
a
Business Day, the first Business Day immediately following).
Servicing
Advances:
Expenditures incurred by a Servicer in connection with the liquidation or
foreclosure of a Mortgage Loan which are eligible for reimbursement under the
applicable Servicing Agreement.
Servicing
Agreement:
Any of
the servicing agreements between a Servicer and the Seller, dated as of November
1, 2007, and attached hereto in Exhibit E, and any other servicing agreement
entered into between a successor servicer and the Seller or the Trustee pursuant
to the terms hereof.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to any Servicer, and as to any Distribution Date and each Mortgage
Loan,
an amount equal to the product of (a) one-twelfth of the applicable Servicing
Fee Rate and (b) the outstanding principal balance of such Mortgage Loan as
of
the first day of the related Collection Period.
Servicing
Fee Rate:
0.375%
per annum.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than each Servicer, each
Custodian, the Master Servicer, the Paying Agent and the Trustee, that is
participating in the servicing function within the meaning of Regulation AB,
unless such Person’s activities relate only to 5% or less of the Mortgage
Loans.
Similar
Law:
As
defined in Section 3.03(d).
Sponsor:
Xxxxxx
Brothers Holdings Inc. and any successor in interest thereto.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Stepdown
Date:
The
later to occur of (x) the Distribution Date in December 2010 and (y) the first
Distribution Date on which the Senior Enhancement Percentage (calculated for
this purpose after giving effect to payments or other recoveries in respect
of
the Mortgage Loans
48
during
the related Collection Period but before giving
effect to distributions on any Certificates on such Distribution Date) is
greater than or equal to (i) prior to the Distribution Date in December 2013,
20.37% and (ii) on or after the Distribution Date in December 2013,
16.30%.
Subcontractor:
Any
third-party or Affiliated vendor, subcontractor or other Person utilized by
a
Servicer, a Custodian, the Master Servicer, a Subservicer or the Trustee that
is
not responsible for the overall servicing (as “servicing” is commonly understood
by participants in the mortgage-backed securities market) of the Mortgage Loans
but performs one or more discrete functions identified in Item 1122(d) of
Regulation AB with respect to the Mortgage Loans under direction and authority
of such Servicer, Custodian, Master Servicer, Subservicer or
Trustee.
Subordinate
Certificates:
Collectively, the Class M1, Class M2, Class M3, Class M4, Class M5 and Class
M6
Certificates.
Subordinate
Priority:
Distributions to the Class M1, Class M2, Class M3, Class M4, Class M5 and Class
M6 Certificates, sequentially,
in that
order.
Subsequent
Recovery:
Any
amount recovered by any Servicer or the Master Servicer with respect to a
Liquidated Mortgage Loan with respect to which a Realized Loss was incurred
after the liquidation or disposition of such Mortgage Loan.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer or an Additional Servicer,
and
(iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of material servicing functions required to
be
performed by the Servicer or Master Servicer under this Agreement, the Servicing
Agreements, the Custodial Agreements or other Servicing agreements entered
into
with respect to some or all of the Mortgage Loans, that are identified in Item
1122(d) of Regulation AB.
Substitution
Amount:
The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus unpaid interest thereon, and any related unpaid Advances or
Servicing Advances or unpaid Servicing Fees, plus any costs and damages incurred
by the Trust Fund associated with violation of any federal, state or local
predatory or abusive lending laws.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 5.08 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Supplemental Interest Trust Account and the right to receive
the
X Component Distributable Amount as provided in Section 5.08.
Supplemental
Interest Trust Account:
The
account created pursuant to Section 5.08 of this Agreement.
Supplemental
Interest Trust Amount:
With
respect to any Swap Payment Date, the sum of any Net Swap Payment and any Swap
Termination Payment deposited into the Supplemental Interest Trust
Account.
49
Swap
Agreement:
The
interest rate swap agreement entered into by the Supplemental Interest Trust,
which agreement provides for, among other things, a Net Swap Payment to be
paid
pursuant to the conditions provided therein, together with any schedules,
confirmations or other agreements relating thereto, attached hereto as Exhibit
N.
Swap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Swap Agreement, and
any successor in interest or assigns. Initially, the Swap Counterparty shall
be
ABN AMRO Bank N.V.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of (i) a Swap Default
with
respect to which the Swap Counterparty is a Defaulting Party, (ii) a Termination
Event with respect to which the Swap Counterparty is the sole Affected Party
or
(iii) an Additional Termination Event with respect to which the Swap
Counterparty is the sole Affected Party has occurred.
Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
Swap
Early Termination:
The
occurrence of an early termination date under the Swap Agreement.
Swap
LIBOR:
With
respect to any Distribution Date (and the related Accrual Period), the product
of (i) the Floating Rate Option (as defined under “Floating Amounts” in the Swap
Agreement) for the related Swap Payment Date and (ii) two, as calculated by
the
Swap Counterparty and furnished to the Trustee.
Swap
Payment Date:
For so
long as the Swap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
SWAP
REMIC:
As
described in the Preliminary Statement hereto.
SWAP
REMIC Interests:
Any one
of the classes of SWAP REMIC Interests described in the Preliminary Statement
hereto.
SWAP
REMIC Regular Interests:
Any of
the SWAP REMIC Interests other than the Class SW-R Interest.
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment required to be made by the Supplemental Interest Trust to the Swap
Counterparty, or by the Swap Counterparty to the Supplemental Interest Trust,
as
applicable, pursuant to the terms of the Swap Agreement, and any unpaid amounts
due on previous Swap Payment Dates and accrued interest thereon as provided
in
the Swap Agreement, as calculated by the Swap Counterparty and furnished to
the
Trustee.
Target
Amount:
With
respect to any Distribution Date, an amount equal to the Pool Balance as of
such
Distribution Date minus the Targeted Overcollateralization Amount for such
Distribution Date.
50
Targeted
Overcollateralization Amount:
With
respect to any Distribution Date (x) prior to the Stepdown Date an amount equal
to approximately $11,695,651 (2.550% of the Pool Balance as of the Cut-off
Date), (y) on or after the Stepdown Date, the greater of (1) the lesser of
(a)
the amount of approximately $11,695,651 and (b) the product of (i) for each
distribution prior to the Distribution Date in December 2013, 6.375%, and
thereafter, 5.100% and (ii) the Pool Balance as of the last day of the related
Collection Period and (2) the Overcollateralization Floor and (z) on and after
the Stepdown Date and for which a Trigger Event is in effect, the amount
calculated under this definition for the immediately preceding Distribution
Date.
Tax
Matters Person:
Not
applicable.
Telerate
Page 3750:
The
display currently so designated as “Page 3750” on the Moneyline Telerate Service
(or such other page selected by the Trustee as may replace Page 3750 on that
service for the purpose of displaying daily comparable rates on
prices).
Termination
Event:
As
defined in the Swap Agreement.
Termination
Receipts:
Not
applicable.
Termination
Receipts Account:
Not
applicable.
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Total
Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the Interest Remittance Amount
for such date; (ii) the Principal Remittance Amount for such date; and (iii)
the
Prepayment Premiums.
Transfer
Agreements:
As
defined in the Mortgage Loan Sale Agreement.
Transferor:
Each
seller of Mortgage Loans to either of LBH or Xxxxxx Brothers Bank, FSB pursuant
to a Transfer Agreement.
Trigger
Event:
With
respect to any Distribution Date, means that either a Delinquency Event or
a
Cumulative Loss Trigger Event is in effect for such Distribution
Date.
Trust
Fund:
The
corpus of Xxxxxx XS Trust, Series 2007-20N created pursuant to this Agreement,
consisting of the Mortgage Loans, the assignment of the Depositor’s rights under
the Transfer Agreements, the Mortgage Loan Sale Agreement and the Servicing
Agreements, such amounts as shall from time to time be held in the Basis Risk
Reserve Fund, Collection Account, Certificate Account, any Custodial Account
and
any Escrow Account, the Insurance Policies, any REO Property and the other
items
referred to in, and conveyed to the Trustee under, Section 2.01(a). For the
avoidance of doubt, the assets of the Trust Fund shall not include the Swap
Agreement, the Interest Rate Cap Agreement and the Interest Rate Cap
Account.
Trust
REMIC:
Each
REMIC created hereunder, as described in the Preliminary Statement
hereto.
51
Trustee:
U.S.
Bank National Association, a national banking association, not in its individual
capacity, but solely in its capacity as trustee, for the benefit of the related
Certificateholders under this Agreement, and any successor thereto, and any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and
any
successor trustee as may from time to time be serving as successor trustee
hereunder.
UCC
or
Uniform Commercial Code:
The
Uniform Commercial Code as in effect in any applicable jurisdiction from
time to
time.
Uncertificated
Class X Interest:
An
uncertificated regular interest in REMIC 3 with an initial principal balance
equal to the excess of (i) the aggregate Cut-off Date Balance for each Mortgage
Pool over (ii) the aggregate initial principal amounts of the Offered
Certificates and bearing interest on a each Distribution Date in an amount
equal
to the X Component Current Interest for such Distribution Date; provided,
however,
that
such interest shall have no obligation or right to make or receive any payments
treated as paid or received by the Class X Certificates pursuant to interest
rate cap agreements or notional principal contracts under Section 10.01 and
shall have no rights to receive payments in respect of Class X Shortfalls
from
the Master Servicer as described in Section 10.01.
Underlying
REMIC Certificates:
Not
applicable.
Underwriter:
Xxxxxx
Brothers Inc.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), as amended
(or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
Unpaid
Basis Risk Shortfall:
With
respect to any Distribution Date and any Class of Offered Certificates and
Subordinate Certificates, the aggregate of all Basis Risk Shortfalls with
respect to such Class remaining unpaid from previous Distribution Dates,
plus
interest accrued thereon at the applicable Certificate Interest Rate (calculated
without giving effect to the Net Funds Cap).
Upper
Tier REMIC:
Not
applicable.
Voting
Interests:
The
portion of the voting rights of all the Certificates that is allocated to
any
Certificate for purposes of the voting provisions of this Agreement. At all
times during the term of this Agreement, 94% of all Voting Interests shall
be
allocated to the Offered Certificates (other than the Class AX Certificates),
2%
of all Voting Interests shall be allocated to each Class of the Class AX
Certificates and 1% of all Voting Interests shall be allocated to each Class
of
the Class C, Class X, Class AP and Class R Certificates. Voting Interests
shall
be allocated among such Classes of Certificates (other than the Class P,
Class X
and Class R Certificates) in proportion to their Class Principal Amounts
or
Class Notional Amounts and among the Certificates of each Class in proportion
to
their Percentage Interests. Voting Interests shall be allocated among the
Classes of Offered Certificates in proportion to their Class Principal Amounts
or Class Notional Amounts and among the Certificates of each Class in proportion
to their Percentage Interests.
52
WHFIT:
A
“Widely Held Fixed Investment Trust” as that term is defined in Treasury
Regulations section 1.671-5(b)(22) or successor provisions.
WHFIT
Regulations:
Treasury Regulations section 1.671-5, as amended.
WHMT:
A
“Widely Held Mortgage Trust” as that term is defined in Treasury Regulations
section 1.671-5(b)(23) or successor provisions.
X
Component:
The
portion of the Class X Certificates representing the right to distributions
to
the Class X Certificates as described herein.
X
Component Account:
An
account established as part of the Trust Fund pursuant to Section 5.13 of
this
Agreement but which is not an asset of any of the REMICs for the benefit
of the
X Component of the Class X Certificates and the Class C
Certificates.
X
Component Account Termination Date:
The
Distribution Date in March 2010.
X
Component Current Interest:
For any
Distribution Date, the interest accrued during the related Accrual Period
on the
X Component Notional Balance at the X Component Interest Rate.
X
Component Distributable Amount:
On any
Distribution Date, the excess of (i) the sum of (x) the excess of (1) the
aggregate Cut-off Date Balance for each Mortgage Pool over (2) the aggregate
initial principal amounts of the Offered Certificates, (y) the aggregate
X
Component Current Interest for such Distribution Date and all prior Distribution
Dates and (z) amounts treated as received by the Class X Certificates in
respect
of Class I Shortfalls described in Section 10.01(n) over (ii) the sum of
(w) the
aggregate payments in respect of Excess Interest for the Offered Certificates
for such Distribution Date and all prior Distribution Dates (to the extent
not
derived from procceds of the Swap Agreement or the Interest Rate Cap Agreement),
(x) all prior distributions to the X Component of the Class X Certificate
under
Section 5.02(e)(ix) hereof, (y) all payments treated as distributed by REMIC
3
to the Uncertificated Class X Interest then paid to the Swap Counterparty
as
described in Section 10.01(o) and (z) all payments treated as paid by the
Offered Certificates to the Class X Certificates in respect of Class I
Shortfalls then paid to the Swap Counterparty as described in Section
10.01(o).
X
Component Interest Rate:
For any
Distribution Date, the excess of (i) the weighted average of the interest
rates
on the REMIC 1 Regular Interests (other than the Class LT1-IO Interest) over
(ii) two times the weighted average of the interest rates on the REMIC 1
Marker
Classes and the Class LT1-X Interest (treating for purposes of this clause
(ii)
the interest rate on each of the REMIC 1 Marker Classes as being subject
to a
cap equal to the interest rate of the Related REMIC 2 Interest of the
Corresponding Classes of Certificates (as adjusted, if necessary, to reflect
accruals on the basis of the actual number of days in the Accrual Period
for the
LIBOR Certificates) and treating the interest rate on the Class LT1-X Interest
as capped at zero). The average described in the preceding sentence shall
be
weighted on the basis of the respective principal balances of the REMIC 1
Regular Interests immediately prior to such Distribution Date.
53
X
Component Notional Balance:
With
respect to any Distribution Date (and the related Accrual Period), the aggregate
principal balance of the REMIC 1 Regular Interests (other than the Class
LT1-IO
Interest) immediately prior to such Distribution Date.
Section
1.02 Calculations
Respecting Mortgage Loans.
Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan
in the Trust Fund shall be made based upon current information as to the
terms
of the Mortgage Loans and reports of payments received from the Mortgagor
on
such Mortgage Loans and payments to be made to the Trustee as supplied to
the
Trustee by the Master Servicer. The Trustee shall not be required to recompute,
verify or recalculate the information supplied to it by the Master Servicer
or
any Servicer.
Section
1.03 Calculations
Respecting Accrued Interest.
Accrued
interest, if any, on any Senior Certificate (other than the Class AX
Certificates) shall be calculated based upon a 360-day year and the actual
number of days elapsed in each Accrual Period. Accrued interest, if any,
on any
Subordinate Certificate and Class AX Certificate shall be calculated based
upon
a 360-day year consisting of twelve 30-day months.
Section
1.04 Rights
of the NIMS Insurer.
Each
of
the rights of any NIMS Insurer set forth in this Agreement shall exist so
long
as (i) the NIMS Insurer has undertaken to guarantee certain payments of NIM
Securities issued pursuant to the Indenture and (ii) the NIM Securities issued
pursuant to the Indenture remain outstanding or the NIMS Insurer is owed
amounts
in respect of its guarantee of payment on such notes; provided, however,
the
NIMS Insurer shall not have any rights hereunder (except pursuant to Section
11.03 and any rights to indemnification hereunder in the case of clause (ii)
below) so long as (i) the NIMS Insurer has not undertaken to guarantee certain
payments of notes issued pursuant to the Indenture or (ii) any default has
occurred and is continuing under the insurance policy issued by the NIMS
Insurer
with respect to such notes.
ARTICLE
II.
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
Section
2.01 Creation
and Declaration of Trust Fund; Conveyance of Mortgage Loans.
(a) Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, subject to Sections 2.02, 2.04, 2.05 and 2.06, in trust,
all
the right, title and interest of the Depositor in and to the Mortgage Loans.
Such conveyance includes, without limitation, the right to all payments of
principal and interest received on or with respect to the Mortgage Loans
on and
after the Cut-off Date (other than payments of principal and interest due
on or
before such date), and all such payments due after such date but received
prior
to such date and intended by the related Mortgagors to be applied after such
date together with all of the Depositor’s right, title and interest in and to
the Collection Account, the Interest Rate Cap Account, the Certificate
54
Account
and all amounts from time to time credited to
and the proceeds of the Certificate Account, any Custodial Accounts, any
Escrow
Account established pursuant to Section 9.06, the Basis Risk Reserve Fund
established pursuant to Section 5.06 and all amounts from time to time credited
to and the proceeds of each such account, the X Component Account established
pursuant to Section 5.13 and all amounts from time to time credited to and
the
proceeds of each such account, any REO Property and the proceeds thereof,
the
Depositor’s rights under any Insurance Policies related to the Mortgage Loans,
the Depositor’s security interest in any collateral pledged to secure the
Mortgage Loans, including the Mortgaged Properties, and any proceeds of the
foregoing, to have and to hold, in trust; and the Trustee declares that,
subject
to the review provided for in Section 2.02, it has received and shall hold
the
Trust Fund, as trustee, in trust, for the benefit and use of the Holders
of the
related Certificates and for the purposes and subject to the terms and
conditions set forth in this Agreement, and, concurrently with such receipt,
has
caused to be executed, authenticated and delivered to or upon the order of
the
Depositor, in exchange for the Trust Fund, Certificates in the authorized
denominations evidencing the entire ownership of the Trust Fund, as
applicable.
Concurrently
with the execution of this Agreement, the Swap Agreement shall be delivered
to
the Trustee. In connection therewith, the Depositor hereby directs the Trustee
(solely in its capacity as such) and the Trustee is hereby authorized to
execute
and deliver the Swap Agreement (on behalf of the Supplemental Interest Trust)
for the benefit of, the Certificateholders. The Seller, the Master Servicer,
the
Depositor, the Servicers and the Certificateholders (by their acceptance
of such
Certificates) acknowledge and agree that the Trustee is executing and delivering
the Swap Agreement solely in its capacity as Trustee of the Supplemental
Interest Trust and the Trust Fund not in its individual capacity. The Trustee
shall have no duty or responsibility to enter into any other interest rate
swap
agreement upon the expiration or termination of the Swap Agreement.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Sale Agreement, including all rights of the Seller under the Servicing
Agreements and each related Transfer Agreement (other than first payment
date
default or early payment date default rights against the Transferor) but,
in
each case, only to the extent assigned under the Mortgage Loan Sale Agreement.
The Trustee hereby accepts such assignment and delegation, and shall be entitled
to exercise all the rights of the Depositor under the Mortgage Loan Sale
Agreement as if, for such purpose, it were the Depositor. The foregoing sale,
transfer, assignment, set-over, deposit, delegation and conveyance does not
and
is not intended to result in the creation or assumption by the Trustee of
any
obligation of the Depositor, the Sellers or any other Person in connection
with
the Mortgage Loans or any other agreement or instrument relating thereto
except
as specifically set forth herein.
(b) In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Trustee, and/or a Custodian acting on the Trustee’s behalf, the following
documents or instruments with respect to each Mortgage Loan (each a “Mortgage
File”) so transferred and assigned:
(i) with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of the Trustee, as shown on Exhibit
B-4
hereto, or in blank (in each case, with all necessary intervening endorsements,
as applicable) or with respect to any lost Mortgage Note, a lost note affidavit
stating that the original Mortgage Note was lost, misplaced or destroyed,
together with a copy of the related Mortgage Note;
55
(ii) if
applicable, the original of any guarantee, security agreement or pledge
agreement executed in connection with the Mortgage Note, assigned to the
Trustee;
(iii) with
respect to any Mortgage Loan other than a Cooperative Loan, the original
recorded Mortgage with evidence of recording indicated thereon and the original
recorded power of attorney, with evidence of recording thereon. If, in
connection with any Mortgage Loan, the Depositor cannot deliver the Mortgage
or
power of attorney with evidence of recording thereon on or prior to the Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage or power
of
attorney has been lost, the Depositor shall deliver or cause to be delivered
to
the Trustee (or the applicable Custodian), in the case of a delay due to
recording, a true copy of such Mortgage or power of attorney, pending delivery
of the original thereof, together with an Officer’s Certificate of the Depositor
certifying that the copy of such Mortgage or power of attorney delivered
to the
Trustee (or its Custodian) is a true copy and that the original of such Mortgage
or power of attorney has been forwarded to the public recording office, or,
in
the case of a Mortgage or power of attorney that has been lost, a copy thereof
(certified as provided for under the laws of the appropriate jurisdiction)
and a
written Opinion of Counsel delivered to the Trustee and the Depositor that
an
original recorded Mortgage or power of attorney is not required to enforce
the
Trustee’s interest in the Mortgage Loan;
(iv) the
original of each assumption, modification or substitution agreement, if any,
relating to the Mortgage Loans, or, as to any assumption, modification or
substitution agreement which cannot be delivered on or prior to the Closing
Date
because of a delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for recordation,
a
photocopy of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or the applicable Custodian)
is
a true copy and that the original of such agreement has been forwarded to
the
public recording office;
(v) with
respect to each Non-MERS Mortgage Loan, an original Assignment of Mortgage,
in
form and substance acceptable for recording. The related Mortgage shall be
assigned either (A) in blank, without recourse or (B) to “U.S. Bank National
Association, as Trustee of the Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2007-20N,” without recourse;
(vi) if
applicable, such original intervening assignments of the Mortgage, notice
of
transfer or equivalent instrument (each, an “Intervening Assignment”), as may be
necessary to show a complete chain of assignment from the originator, or,
in
the case of an Intervening Assignment that has been
lost, a
written Opinion of Counsel delivered to the Trustee that such original
Intervening Assignment is not required to enforce the Trustee’s interest in the
Mortgage Loans;
56
(vii) with
respect to any Mortgage Loan other than a Cooperative Loan, the original
mortgagee title insurance policy or attorney’s opinion of title and abstract of
title, and, if applicable, the original Primary Mortgage Insurance Policy
or
certificate;
(viii) the
original of any security agreement, chattel mortgage or equivalent instrument
executed in connection with the Mortgage or as to any security agreement,
chattel mortgage or their equivalent instrument that cannot be delivered
on or
prior to the Closing Date because of a delay caused by the public recording
office where such document has been delivered for recordation, a photocopy
of
such document, pending delivery of the original thereof, together with an
Officer’s Certificate of the Depositor certifying that the copy of such security
agreement, chattel mortgage or their equivalent instrument delivered to the
Trustee (or the applicable Custodian) is a true copy and that the original
of
such document has been forwarded to the public recording office;
(ix) it
is
agreed and understood by the Depositor and the Trustee (and the Seller has
so
represented and recognized in the Mortgage Loan Sale and Assignment Agreement)
that it is not intended that any Mortgage Loan to be included in the Trust
Fund
be (i) a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act
effective November 27, 2003, (ii) a “High-Cost Home Loan” as defined in the New
Mexico Home Loan Protection Act effective January 1, 2004, (iii) a “High-Cost
Home Mortgage Loan” as defined in the Massachusetts Predatory Home Loan
Practices Act effective November 7, 2004 or (iv) a “High Cost Home Loan” as
defined in the Indiana Home Loan Practices Act effective January 1,
2005;
(x) with
respect to any manufactured housing contract, any related manufactured housing
sales contract, installment loan agreement or participation interest;
and
(xi) with
respect to any Cooperative Loan, the Cooperative Loan Documents.
The
parties hereto acknowledge and agree that the form of endorsement attached
hereto as Exhibit B-4 is intended to effect the transfer to the Trustee,
for the
benefit of the Certificateholders, of the Mortgage Notes and the
Mortgages.
(c) (i) Assignments
of Mortgage with respect to each Non-MERS Mortgage Loan other than a Cooperative
Loan shall be recorded; provided, however, that such Assignments need not
be
recorded if, on or prior to the Closing Date, the Depositor delivers, at
its own
expense, an Opinion of Counsel addressed to the Trustee (which must be
Independent counsel) acceptable to the Trustee, the Rating Agencies and any
NIMS
Insurer, to the effect that recording in such states is not required to protect
the Trustee’s interest in the related Non-MERS Mortgage Loans; provided,
further, that notwithstanding the delivery of any Opinion of Counsel, the
Master
Servicer shall cause the Servicer to submit each Assignment of Mortgage for
recording upon the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Mortgagor under the related Mortgage. Subject to the preceding
sentence, as soon as practicable after the Closing Date (but in no event
more
than three months thereafter except to the extent delays are caused by the
applicable recording office), the Master Servicer, at the expense of the
Depositor and with the cooperation of the applicable Servicer, shall cause
to be
properly recorded by such Servicer in each public recording office where
the
related Mortgages are recorded each Assignment of Mortgage referred to in
subsection (b)(v) above with respect to
57
each
Non-MERS Mortgage Loan. With respect to each
Cooperative Loan, the Master Servicer, at the expense of the Depositor and
with
the cooperation of the applicable Servicer, shall cause such Servicer to
take
such actions as are necessary under applicable law in order to perfect the
interest of the Trustee in the related Mortgaged Property.
(ii) With
respect to each MERS Mortgage Loan, the Master Servicer, at the expense of
the
Depositor and with the cooperation of the Servicer, shall cause the Servicer
to
take such actions as are necessary to cause the Trustee to be clearly identified
as the owner of each such Mortgage Loan on the records of MERS for purposes
of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS.
(d) In
instances where a Title Insurance Policy is required to be delivered to the
Trustee or the applicable Custodian on behalf of the Trustee under clause
(b)(vii) above and is not so delivered, the Depositor will provide a copy
of
such Title Insurance Policy to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, as promptly as practicable after the execution and
delivery hereof, but in any case within 180 days of the Closing
Date.
(e) For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off
Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, herewith delivers to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, an Officer’s Certificate which shall include a statement
to the effect that all amounts received in connection with such prepayment
that
are required to be deposited in the Collection Account pursuant to Section
4.01
have been so deposited. All original documents that are not delivered to
the
Trustee or the applicable Custodian on behalf of the Trustee shall be held
by
the Master Servicer or the applicable Servicer in trust for the benefit of
the
Trustee and the Certificateholders.
(f) The
issuing entity is hereby named Xxxxxx XS Trust, Series 2007-20N.
Section
2.02 Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust Fund.
(a) The
Trustee, by execution and delivery hereof, acknowledges receipt by it or
by the
applicable Custodian on its behalf of the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof
by the Trustee, or by the applicable Custodian on behalf of the Trustee,
under
this Section 2.02. The Trustee, or the applicable Custodian on behalf of
the
Trustee, will execute and deliver to the Trustee, the Depositor, the Master
Servicer and any NIMS Insurer on the Closing Date an Initial Certification
in
the form annexed hereto as Exhibit B-1 (or in the form annexed to the applicable
Custodial Agreement as Exhibit B-1, as applicable).
(b) Within
45
days after the Closing Date, the Trustee or the applicable Custodian on behalf
of the Trustee, will, for the benefit of Holders of the Certificates and
any
NIMS Insurer, review each Mortgage File to ascertain that all required documents
set forth in Section 2.01 have been received and appear on their face to
contain
the requisite signatures by or on behalf of the respective parties thereto,
and
shall deliver to the Trustee, the Depositor, the Master Servicer and any
NIMS
Insurer an Interim Certification in the form annexed hereto as Exhibit B-2
(or
in the form annexed to the applicable Custodial Agreement as Exhibit B-2,
as
applicable) to the effect
58
that,
as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan prepaid in full or any specifically
identified in such certification as not covered by such certification), (i)
all
of the applicable documents specified in Section 2.01(b) are in its possession
and (ii) such documents have been reviewed by it and appear to relate to
such
Mortgage Loan. The Trustee, or the applicable Custodian on behalf of the
Trustee, shall determine whether such documents are executed and endorsed,
but
shall be under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that the
same
are valid, binding, legally effective, properly endorsed, genuine, enforceable
or appropriate for the represented purpose or that they have actually been
recorded or are in recordable form or that they are other than what they
purport
to be on their face. Neither the Trustee nor the applicable Custodian shall
have
any responsibility for verifying the genuineness or the legal effectiveness
of
or authority for any signatures of or on behalf of any party or
endorser.
(c) If
in the
course of the review described in paragraph (b) above the Trustee or the
applicable Custodian discovers any document or documents constituting a part
of
a Mortgage File that is missing, does not appear regular on its face (i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material Defect”), the Trustee, or the applicable Custodian on behalf
of the Trustee, discovering such Material Defect shall promptly identify
the
Mortgage Loan to which such Material Defect relates in the Interim Certification
delivered to the Trustee, the Depositor, the Master Servicer and any NIMS
Insurer. Within 90 days of its receipt of such notice, the Transferor, or,
if
the Transferor does not do so, the Depositor shall be required to cure such
Material Defect (and, in such event, the Depositor shall provide the Trustee
with an Officer’s Certificate confirming that such cure has been effected). If
the applicable Transferor or the Depositor, as applicable, does not so cure
such
Material Defect, the Transferor, or, if the Transferor does not do so, the
Depositor, shall, if a loss has been incurred with respect to such Mortgage
Loan
that would, if such Mortgage Loan were not purchased from the Trust Fund,
constitute a Realized Loss, and such loss is attributable to the failure
of the
Depositor to cure such Material Defect, repurchase the related Mortgage Loan
from the Trust Fund at the Purchase Price. A loss shall be deemed to be
attributable to the failure of the Depositor to cure a Material Defect if,
as
determined by the Depositor, upon mutual agreement with the Trustee each acting
in good faith, absent such Material Defect, such loss would not have been
incurred. Within the two-year period following the Closing Date, the Depositor
may, in lieu of repurchasing a Mortgage Loan pursuant to this Section 2.02,
substitute for such Mortgage Loan a Qualifying Substitute Mortgage Loan subject
to the provisions of Section 2.05. The failure of the Trustee or the applicable
Custodian to give the notice contemplated herein within 45 days after the
Closing Date shall not affect or relieve the Depositor of its obligation
to
repurchase any Mortgage Loan pursuant to this Section 2.02 or any other Section
of this Agreement requiring the repurchase of Mortgage Loans from the Trust
Fund.
(d) Within
180 days following the Closing Date, the Trustee, or the applicable Custodian,
shall deliver to the Trustee, the Depositor, the Master Servicer and any
NIMS
Insurer a Final Certification substantially in the form attached as Exhibit
B-3
(or in the form annexed to the applicable Custodial Agreement as Exhibit
B-3, as
applicable) evidencing the completeness of the Mortgage Files in its possession
or control, with any exceptions noted thereto.
59
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Fund, the Trustee, any Custodian or the Certificateholders of any unsatisfied
duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(f) Each
of
the parties hereto acknowledges that the applicable Custodian shall perform
the
applicable review of the Mortgage Loans and respective certifications thereof
as
provided in this Section 2.02 and in the applicable Custodial
Agreement.
(g) Upon
execution of this Agreement, the Depositor hereby delivers to the Trustee
and
the Trustee acknowledges a receipt of the Mortgage Loan Sale Agreement and
the
Servicing Agreement.
Section
2.03 Representations
and Warranties of the Depositor.
(a) The
Depositor hereby represents and warrants to the Trustee, for the benefit
of
Certificateholders and to the Master Servicer as of the Closing Date or such
other date as is specified, that:
(i) the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement,
and
to create the trust pursuant hereto;
(ii) the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions
hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
(iii) the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or
taken
prior to the date hereof;
(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
60
transactions
contemplated by this Agreement or (B) with
respect to any other matter which in the judgment of the Depositor will be
determined adversely to the Depositor and will if determined adversely to
the
Depositor materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to
perform
its obligations under this Agreement; and
(vi) immediately
prior to the transfer and assignment of the Mortgage Loans to the Trustee,
the
Depositor was the sole owner of record and holder of each Mortgage Loan,
and the
Depositor had good and marketable title thereto, and had full right to transfer
and sell each Mortgage Loan to the Trustee free and clear, subject only to
(1)
liens of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of such Mortgage acceptable to mortgage lending institutions in
the
area in which the related Mortgaged Property is located and specifically
referred to in the lender’s Title Insurance Policy or attorney’s opinion of
title and abstract of title delivered to the originator of such Mortgage
Loan,
and (3) such other matters to which like properties are commonly subject
which
do not, individually or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage, of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
each
Mortgage Loan pursuant to this Agreement.
(b) The
representations and warranties of the Transferor with respect to the related
Mortgage Loans in the applicable Transfer Agreement, which have been assigned
to
the Trustee hereunder, were made as of the date specified in the applicable
Transfer Agreement (or underlying agreement, if such Transfer Agreement is
in
the form of an assignment of a prior agreement). To the extent that any fact,
condition or event with respect to a Mortgage Loan constitutes a breach of
both
(i) a representation or warranty of the applicable Transferor under the
applicable Transfer Agreement and (ii) a representation or warranty of the
Seller under the Mortgage Loan Sale Agreement, the only right or remedy of
the
Trustee or any Certificateholder hereunder (other than a breach by the Seller
of
the representations made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii),
1.04(b)(xviii), 1.04(b)(ix) and 1.04(b)(xx) of the Mortgage Loan Sale Agreement)
shall be their rights to enforce the obligations of the applicable Transferor
under any applicable representation or warranty made by it. Pursuant to the
terms of the Mortgage Loan Sale Agreement, the representations and warranties
made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii),
1.04(b)(xviii), 1.04(b)(ix) and 1.04(b)(xx) of the Mortgage Loan Sale Agreement
shall be the direct obligations of the Seller. With the exception of the
immediately proceeding sentence, the Seller shall not have any other obligation
or liability with respect to any breach of a representation or warranty made
by
it with respect to the Mortgage Loans sold by it if the fact, condition or
event
constituting such breach also constitutes a breach of a representation or
warranty made by the applicable Transferor in the applicable Transfer Agreement,
without regard to whether such Transferor fulfills its contractual obligations
in respect of such representation or warranty. The Depositor shall have no
obligation or liability with respect to any breach of any representation
or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.03(a)(vi)) under any circumstances.
61
Section
2.04 Discovery
of Breach.
It
is
understood and agreed that the representations and warranties (i) set forth
in
Section 2.03, (ii) of the Seller set forth in the Mortgage Loan Sale Agreement
and assigned to the Depositor by the Seller under the Mortgage Loan Sale
Agreement and to the Trustee by the Depositor hereunder and (iii) of the
Transferor and of the Servicer assigned by the Seller to the Depositor pursuant
to the Mortgage Loan Sale Agreement and assigned to the Trustee by the Depositor
hereunder, shall each survive delivery of the Mortgage Files and the Assignment
of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout
the term of this Agreement. Upon discovery by any of the Depositor, any NIMS
Insurer, the Master Servicer or the Trustee of a breach of any of such
representations and warranties that materially and adversely affects the
value
of the related Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties; provided, to the extent that
knowledge of such breach with respect to any Mortgage Loan is known by any
officer, director, employee or agent of Aurora acting in any capacity other
than
as Master Servicer hereunder, the Master Servicer shall not be deemed to
have
knowledge of any such breach until an officer of Aurora acting in a capacity
as
Master Servicer has actual knowledge thereof. Within 90 days of the discovery
of
a breach of any representation or warranty given to the Trustee by the Depositor
or given by a Transferor or the Seller and assigned to the Trustee, the
Depositor, such Transferor or the Seller, as applicable, shall either (a)
cure
such breach in all material respects, (b) repurchase such Mortgage Loan or
any
property acquired in respect thereof from the Trustee at the Purchase Price
(or,
with respect to Mortgage Loans as to which there is a breach of a representation
or warranty set forth in Section 1.04(b)(v) of the Mortgage Loan Sale Agreement,
at the purchase price therefor paid by the Seller under the Mortgage Loan
Sale
Agreement) or (c) within the two-year period following the Closing Date,
substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage
Loan.
In the event of discovery of a breach of any representation and warranty
of a
Transferor assigned to the Trustee, the Trustee shall enforce its rights
under
the applicable Transfer Agreement and the Mortgage Loan Sale Agreement for
the
benefit of Certificateholders. As provided in the Mortgage Loan Sale Agreements,
if a Transferor substitutes a mortgage loan for a Deleted Mortgage Loan pursuant
to the Transfer Agreement and such substitute mortgage loan is not a Qualifying
Substitute Mortgage Loan, then pursuant to the terms of the Mortgage Loan
Sale
Agreement the Seller will, in exchange for such substitute mortgage loan,
(i)
pay to the Trust Fund the applicable Purchase Price for the affected Mortgage
Loan or (ii) within two years of the Closing Date, substitute a Qualifying
Substitute Mortgage Loan.
Section
2.05 Repurchase,
Purchase or Substitution of Mortgage Loans.
(a) With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement, by the Seller pursuant to the Mortgage Loan Sale Agreement, or
by the
Transferor pursuant to the applicable Transfer Agreement, the principal portion
of the funds received by the Master Servicer in respect of such repurchase
of a
Mortgage Loan will be considered a Principal Prepayment and the Purchase
Price
shall be deposited in the Collection Account or a Custodial Account, as
applicable. The Trustee (i) upon receipt of the full amount of the Purchase
Price for a Deleted Mortgage Loan, (ii) upon receipt of a written certification
from the Master Servicer that it has received the full amount of the Purchase
Price for a Deleted Mortgage Loan and has deposited such amount in the
Collection Account or (iii) upon receipt of notification from the
62
applicable
Custodian that it had received the Mortgage
File for a Qualifying Substitute Mortgage Loan substituted for a Deleted
Mortgage Loan (and any applicable Substitution Amount), shall release or
cause
to be released and reassign to the Depositor, the Seller or the Transferor,
as
applicable, the related Mortgage File for the Deleted Mortgage Loan and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty, as shall be necessary to vest
in
such party or its designee or assignee title to any Deleted Mortgage Loan
released pursuant hereto, free and clear of all security interests, liens
and
other encumbrances created by this Agreement, which instruments shall be
prepared by the applicable Servicer and the Trustee shall have no further
responsibility with respect to the Mortgage File relating to such Deleted
Mortgage Loan. The Seller indemnifies and holds the Trust Fund, the Master
Servicer, the Trustee, the Depositor and each Certificateholder harmless
against
any and all taxes, claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Trust Fund, the Trustee, the Master Servicer, the Depositor and
any
Certificateholder may sustain in connection with any actions of the Seller
relating to a repurchase of a Mortgage Loan other than in compliance with
the
terms of this Section 2.05 and the Mortgage Loan Sale Agreement, to the extent
that any such action causes an Adverse REMIC Event.
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Trustee (or the applicable Custodian) pursuant to the terms of this Article
II
in exchange for a Deleted Mortgage Loan: (i) the Depositor, the Transferor
or
the Seller, as applicable, must deliver to the Trustee (or the applicable
Custodian) the Mortgage File for the Qualifying Substitute Mortgage Loan
containing the documents set forth in Section 2.01(b) along with a written
certification certifying as to the delivery of such Mortgage File and containing
the granting language set forth in Section 2.01(a); and (ii) the Depositor
will
be deemed to have made, with respect to such Qualifying Substitute Mortgage
Loan, each of the representations and warranties made by it with respect
to the
related Deleted Mortgage Loan. As soon as practicable after the delivery
of any
Qualifying Substitute Mortgage Loan hereunder, the Master Servicer, at the
expense of the Depositor and with the cooperation of the applicable Servicer,
shall (i) with respect to a Qualifying Substitute Mortgage Loan that is a
Non-MERS Mortgage Loan, cause the Assignment of Mortgage to be recorded by
the
applicable Servicer if required pursuant to Section 2.01(c), or (ii) with
respect to a Qualifying Substitute Mortgage Loan that is a MERS Mortgage
Loan,
cause to be taken such actions as are necessary to cause the Trustee to be
clearly identified as the owner of each such Mortgage Loan on the records
of
MERS if required pursuant to Section 2.01(c).
(c) Notwithstanding
any other provision of this Agreement, the right to substitute Mortgage Loans
pursuant to this Article II shall be subject to the additional limitations
that
no substitution of a Qualifying Substitute Mortgage Loan for a Deleted Mortgage
Loan shall be made unless the Trustee and the NIMS Insurer have received
an
Opinion of Counsel (at the expense of the party seeking to make the
substitution) that, under current law, such substitution will not result
in an
Adverse REMIC Event.
Section
2.06 Grant
Clause.
(a) It
is
intended that the conveyance of the Depositor’s right, title and interest in and
to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be
63
construed
as, a sale of such property and not a grant of
a security interest to secure a loan. However, if such conveyance is deemed
to
be in respect of a loan, it is intended that: (1) the rights and obligations
of
the parties shall be established pursuant to the terms of this Agreement;
(2)
the Depositor hereby grants to the Trustee for the benefit of the Holders
of the
Certificates a first priority security interest to secure repayment of an
obligation in an amount equal to the aggregate Class Principal Amount of
the
Certificates in all of the Depositor’s right, title and interest in, to and
under, whether now owned or hereafter acquired, the Trust Fund and the
Supplemental Interest Trust and all proceeds of any and all property
constituting the Trust Fund and the Supplemental Interest Trust to secure
payment of the Certificates (such security interest being, to the extent
of the
assets that constitute the Supplemental Interest Trust, pari passu with the
security interest as provided in clause (4) below); (3) this Agreement shall
constitute a security agreement under applicable law; and (4) the Swap
Counterparty shall be deemed, during the term of such agreement and while
such
agreement is the property of the Trustee, to have a security interest in
all of
the assets that constitute the Supplemental Interest Trust, but only to the
extent of such Swap Counterparty’s right to payment under the Swap Agreement
(such security interest being pari passu with the security interest as provided
in clause (2) above). If such conveyance is deemed to be in respect of a
loan
and the trust created by this Agreement terminates prior to the satisfaction
of
the claims of any Person holding any Certificate, the security interest created
hereby shall continue in full force and effect and the Trustee shall be deemed
to be the collateral agent for the benefit of such Person, and all proceeds
shall be distributed as herein provided.
(b) The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement
were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and shall
be
maintained as such throughout the term of this Agreement. The Depositor shall,
at its own expense, make all initial filings on or about the Closing Date
and
shall forward a copy of such filing or filings to the Trustee. Without limiting
the generality of the foregoing, the Depositor shall prepare and forward
for
filing, or shall cause to be forwarded for filing, at the expense of the
Depositor, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee’s security
interest in or lien on the Mortgage Loans, including without limitation (x)
continuation statements, and (y) such other statements as may be occasioned
by
(1) any change of name of the Seller, the Depositor or the Trustee, (2) any
change of location of the jurisdiction of organization of the Seller or the
Depositor, (3) any transfer of any interest of the Seller or the Depositor
in
any Mortgage Loan or (4) any change under the relevant UCC or other applicable
laws. Neither the Seller nor the Depositor shall organize under the law of
any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of
such action to its immediate and intermediate transferee, including the Trustee.
Before effecting such change, the Seller or the Depositor proposing to change
its jurisdiction of organization shall prepare and file in the appropriate
filing office any financing statements or other statements necessary to continue
the perfection of the interests of its immediate and mediate transferees,
including the Trustee, in the Mortgage Loans. In connection with the
transactions contemplated by this Agreement, the Seller and the Depositor
authorizes its immediate or mediate transferee to
64
file
in any filing office any initial financing
statements, any amendments to financing statements, any continuation statements,
or any other statements or filings described in this paragraph (b).
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 (or Notional
Amount), or in the Percentage Interests, specified herein. Each Class of
LIBOR
Certificates, Subordinate Certificates, Class AP or Notional Certificates
will
be issued in the minimum denominations in Certificate Principal Amount (or
Notional Amount) and integral multiples specified in the Preliminary Statement
hereto. The
Class
C and Class X Certificates shall be maintained in definitive, fully registered
form in a minimum denomination equal to 10% of the Percentage Interest of
the
Class. The
Class
R 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.
(b) The
Certificates shall be executed by manual or facsimile signature on behalf
of the
Trustee by an authorized officer. Each Certificate shall, on original issue,
be
authenticated by the Trustee upon the order of the Depositor upon receipt
by the
Trustee of the Mortgage Files described in Section 2.01. No Certificate shall
be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein, executed by an authorized
officer
of the Trustee or the Authenticating Agent, if any, by manual signature,
and
such certification upon any Certificate shall be conclusive evidence, and
the
only evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
At
any time and from time to time after the execution and delivery of this
Agreement, the Depositor may deliver Certificates executed by the Depositor
to
the Trustee or the Authenticating Agent for authentication and the Trustee
or
the Authenticating Agent shall authenticate and deliver such Certificates
as in
this Agreement provided and not otherwise.
(c) The
Privately Offered Certificates offered and sold in reliance on the exemption
from registration under Rule 144A under the Act shall be issued initially
in the
form of one or more permanent global Certificates in definitive, fully
registered form without interest coupons with the applicable legends set
forth
in Exhibit A added to the forms of such Certificates (each, a “Restricted Global
Security”), which shall be deposited on behalf of the subscribers for such
Certificates represented thereby with the Trustee, as custodian for The
Depository Trust Company (“DTC”) and registered in the name of a nominee of DTC,
duly executed and authenticated by the Trustee as hereinafter provided. The
aggregate principal amounts of the Restricted Global Securities may from
time to
time be increased or decreased by adjustments
65
made
on the records of the Trustee or DTC or its
nominee, as the case may be, as hereinafter provided.
(d) The
Privately Offered Certificates sold in offshore transactions in reliance
on
Regulation S shall be issued initially in the form of one or more permanent
global Certificates in definitive, fully registered form without interest
coupons with the applicable legends set forth in Exhibit A hereto added to
the
forms of such Certificates (each, a “Regulation S Global Security”), which shall
be deposited on behalf of the subscribers for such Certificates represented
thereby with the Trustee, as custodian for DTC and registered in the name
of a
nominee of DTC, duly executed and authenticated by the Trustee as hereinafter
provided. The aggregate principal amounts of the Regulation S Global Securities
may from time to time be increased or decreased by adjustments made on the
records of the Trustee or DTC or its nominee, as the case may be, as hereinafter
provided.
(e) The
Privately Offered Certificates sold to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Act shall be issued initially in the
form
of one or more Definitive Certificates.
Section
3.02 Registration.
The
Trustee is hereby appointed, and hereby accepts its appointment as, Certificate
Registrar in respect of the Certificates and shall maintain books for the
registration and for the transfer of Certificates (the “Certificate Register”).
The Trustee may appoint a bank or trust company to act as Certificate Registrar.
A registration book shall be maintained for the Certificates collectively.
The
Certificate Registrar may resign or be discharged or removed and a new successor
may be appointed in accordance with the procedures and requirements set forth
in
Sections 6.06 and 6.07 hereof with respect to the resignation, discharge
or
removal of the Trustee and the appointment of a successor trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Master Servicer, any bank or trust company to act as co
registrar under such conditions as the Certificate Registrar may prescribe;
provided, however, that the Certificate Registrar shall not be relieved of
any
of its duties or responsibilities hereunder by reason of such
appointment.
Section
3.03 Transfer
and Exchange of Certificates.
(a) A
Certificate (other than a Book-Entry Certificate, 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.
66
(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, QIB-Restricted Certificate or Regulation
S Global Security, whether upon original issuance or subsequent transfer,
each
Holder of such a Certificate acknowledges the restrictions on the transfer
of
such Certificate set forth thereon and agrees that it will transfer such
a
Certificate only as provided herein. In addition, each Holder of a Regulation
S
Global Security shall be deemed to have represented and warranted to the
Trustee, the Certificate Registrar and any of their respective successors
that:
(i) such Person is not a U.S. person within the meaning of Regulation S and
was,
at the time the buy order was originated, outside the United States and (ii)
such Person understands that such Certificates have not been registered under
the Act, and that (x) until the expiration of the 40-day distribution compliance
period (within the meaning of Regulation S), no offer, sale, pledge or other
transfer of such Certificates or any interest therein shall be made in the
United States or to or for the account or benefit of a U.S. person (each
as
defined in Regulation S), (y) if in the future it decides to offer, resell,
pledge or otherwise transfer such Certificates, such Certificates may be
offered, resold, pledged or otherwise transferred only (A) to a person which
the
seller reasonably believes is a “qualified institutional buyer” (a “QIB”) as
defined in Rule 144A under the Act, that is purchasing such Certificates
for its
own account or for the account of a qualified institutional buyer to which
notice is given that the transfer is being made in reliance on Rule 144A
or (B)
in an offshore transaction (as defined in Regulation S) in compliance with
the
provisions of Regulation S, in each case in compliance with the requirements
of
this Agreement; and it will notify such transferee of the transfer restrictions
specified in this Section.
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor, the Placement Agent or an
affiliate (as defined in Rule 405 under the Securities Act of 1933, as amended
(the “Act”)) of the Depositor or the Placement Agent or (y) being made to a
“qualified institutional buyer” (a “QIB”) as defined in Rule 144A under the Act
by a transferor that has provided the Trustee with a certificate in the form
of
Exhibit F hereto; and
67
(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 Act, or to any Person all of the equity
owners in which are such accredited investors, by a transferor who furnishes
to
the Trustee a letter of the transferee substantially in the form of Exhibit
G
hereto.
(d) No
transfer of a Certificate that is not an ERISA-Restricted Certificate, a
Class R
Certificate or a Class AX Certificate will be registered unless the Trustee,
the
Certificate Registrar and the Depositor receive a representation as set forth
in
Exhibit H to the effect either (A) that such transferee is not, and is not
acting for, on behalf of or with any assets of, an employee benefit plan
or
other arrangement subject to Title I of ERISA or plan subject to Section
4975 of
the Code, or (B) until the termination of the Swap Agreement, the acquisition
and holding of the Certificate will not constitute or result in a non-exempt
prohibited transaction under Title I of ERISA or Section 4975 of the Code.
No
transfer of an ERISA-Restricted Certificate or a Class R Certificate will
be
registered unless the Trustee, the Certificate Registrar and the Depositor
receive (A) a representation as set forth in Exhibit D-1 for Class R
Certificates or Exhibit H for ERISA-Restricted Certificates to the effect
that
such transferee is not an employee benefit plan or other arrangement subject
to
Title I of ERISA, a plan subject to Section 4975 of the Code or a plan subject
to any provisions under any federal, state, local, non-U.S. or other laws
or
regulations that are substantively similar to the foregoing provisions of
ERISA
or the Code (“Similar Law”) (collectively, a “Plan”), and is not directly or
indirectly acquiring the Class R Certificate for, on behalf of, or with any
assets of any such Plan, or (B) solely in the case of an ERISA-Restricted
Certificate (I) a representation as set forth in Exhibit H for ERISA-Restricted
Certificates that, if the Certificate has been the subject of an
ERISA-Qualifying Underwriting, such transferee is an insurance company that
is
acquiring the Certificate with assets contained in an “insurance company general
account,” as defined in Section V(e) of Prohibited Transaction Class Exemption
(“PTCE”) 95-60, and the acquisition and holding of the Certificate are covered
and exempt under Sections I and III of PTCE 95-60, or (II) solely in the
case of
an ERISA-Restricted Certificate that is a Definitive Certificate, an Opinion
of
Counsel satisfactory to the Trustee, the Certificate Registrar and the
Depositor, and upon which the Trustee, the Certificate Registrar and the
Depositor shall be entitled to rely, to the effect that the acquisition and
holding of such Certificate will not constitute or result in a nonexempt
prohibited transaction under ERISA or the Code, or a violation of Similar
Law,
and will not subject the Trustee, the Certificate Registrar, the Master
Servicer, any Servicer or the Depositor to any obligation in addition to
those
expressly undertaken in this Agreement, which Opinion of Counsel shall not
be an
expense of the Trustee, the Certificate Registrar, the Master Servicer, any
Servicer or the Depositor.
Except
in
the case of Definitive Certificates, the representations set forth in the
preceding two paragraphs, other than clause (B)(II) in the immediately preceding
paragraph, shall be deemed to have been made to the Trustee, the Certificate
Registrar and the Depositor by the transferee’s acceptance of a Certificate (or
the acceptance by a Certificate Owner of the beneficial interest in any Class
of
Certificate). The Trustee, the Certificate Registrar and the Depositor shall
not
have any obligation to monitor transfers of Book-Entry Certificates or
Restricted Global Securities or any liability for transfers of such Certificates
in violation of the transfer restrictions.
68
Notwithstanding
any other provision herein to the contrary, any purported transfer of a
Certificate to or on behalf of a Plan without the delivery to the Trustee,
the
Certificate Registrar and the Depositor of a representation or an Opinion
of
Counsel satisfactory to the Trustee, the Certificate Registrar and the Depositor
as described above shall be void and of no effect and 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. The Trustee, the Certificate Registrar and the Depositor shall not
have
any liability to any Person for any registration or transfer of any Certificate
that is in fact not permitted by this Section 3.03(d) and the Trustee, the
Certificate Registrar and the Depositor shall not have any liability for
making
any payments due on such Certificate to the Holder thereof or taking any
other
action with respect to such Holder under the provisions of this Agreement
so
long as the transfer was registered by the Certificate Registrar in accordance
with the foregoing requirements. The Trustee, the Certificate Registrar and
the
Depositor shall be entitled, but not obligated, to recover from any Holder
of
any Certificate that was in fact a Plan and that held such Certificate in
violation of this Section 3.03(d) all payments made on such Certificate at
and
after the time it commenced such holding. Any such payments so recovered
shall
be paid and delivered to the last preceding Holder of such Certificate that
is
not a Plan.
(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 a Certificate.
(f) Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be
owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless, in the case of clause (ii), such person is (A) not a Non-U.S. Person
or
(B) is a Non-U.S. Person that holds a Residual Certificate in connection
with
the conduct of a trade or business within the United States and has furnished
the transferor and the Trustee with an effective Internal Revenue Service
Form
W-8ECI or successor form at the time and in the manner required by the Code
(any
such person who is not covered by clause (A) or (B) above is referred to
herein
as a “Non-permitted Foreign Holder”).
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of a Residual Certificate, the proposed transferee shall deliver
to
the Trustee an affidavit in substantially the form attached hereto as Exhibit
D-1 representing and warranting, among other things, that such transferee
is
neither a Disqualified Organization, an agent or nominee acting on behalf
of a
Disqualified Organization, nor a Non-permitted Foreign Holder (any such
transferee, a “Permitted Transferee”), and the proposed transferor shall deliver
to the Trustee an affidavit in substantially the form attached hereto as
Exhibit
D-2. In addition, the Trustee may (but shall have no obligation to) require,
prior to and as a condition of any such transfer, the delivery by the proposed
transferee of an Opinion of Counsel, addressed to the Depositor, the Master
Servicer, any NIMS Insurer 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
69
owner,
is not a Disqualified Organization, agent or
nominee thereof, or a 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, or an agent or nominee thereof,
or Non-permitted Foreign Holder. The Trustee shall be entitled, but not
obligated, 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).
(g) Each
Holder or Certificate Owner of a Restricted Certificate, ERISA-Restricted
Certificate, QIB-Restricted Certificate or Residual Certificate, or an interest
therein, by such Holder’s or Owner’s acceptance thereof, shall be deemed for all
purposes to have consented to the provisions of this section.
(h) Notwithstanding
any provision to the contrary herein, so long as a Global Security representing
any Privately Offered Certificate remains outstanding and is held by or on
behalf of DTC, transfers of a Global Security representing any such
Certificates, in whole or in part, shall only be made in accordance with
Section
3.01 and this Section 3.03(h).
(i) Subject
to clauses (ii) and (iii) of this Section 3.03(h), transfers of a Global
Security representing any Privately Offered Certificate shall be limited
to
transfers of such
70
Global
Security, in whole or in part, to nominees of DTC
or to a successor of DTC or such successor’s nominee.
(ii) Restricted
Global Security to Regulation S Global Security. If a holder of a beneficial
interest in a Restricted Global Security deposited with or on behalf of DTC
wishes at any time to exchange its interest in such Restricted Global Security
for an interest in a Regulation S Global Security, or to transfer its interest
in such Restricted Global Security to a Person who wishes to take delivery
thereof in the form of an interest in a Regulation S Global Security, such
holder, provided such holder is not a U.S. person, may, subject to the rules
and
procedures of DTC, exchange or cause the exchange of such interest for an
equivalent beneficial interest in the Regulation S Global Security. Upon
receipt
by the Trustee, as Certificate Registrar, of (I) instructions from DTC directing
the Trustee, as Certificate Registrar, to be credited a beneficial interest
in a
Regulation S Global Security in an amount equal to the beneficial interest
in
such Restricted Global Security to be exchanged but not less than the minimum
denomination applicable to such holder’s Certificates held through a Regulation
S Global Security, (II) a written order given in accordance with DTC’s
procedures containing information regarding the participant account of DTC
and,
in the case of a transfer pursuant to and in accordance with Regulation S,
the
Euroclear or Clearstream account to be credited with such increase and (III)
a
certificate in the form of Exhibit V-1 hereto given by the holder of such
beneficial interest stating that the exchange or transfer of such interest
has
been made in compliance with the transfer restrictions applicable to the
Global
Securities, including that the holder is not a U.S. person, and pursuant
to and
in accordance with Regulation S, the Trustee, as Certificate Registrar, shall
reduce the principal amount of the Restricted Global Security and increase
the
principal amount of the Regulation S Global Security by the aggregate principal
amount of the beneficial interest in the Restricted Global Security to be
exchanged, and shall instruct Euroclear or Clearstream, as applicable,
concurrently with such reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest
in
the Regulation S Global Security equal to the reduction in the principal
amount
of the Restricted Global Security.
(iii) Regulation
S Global Security to Restricted Global Security. If a holder of a beneficial
interest in a Regulation S Global Security deposited with or on behalf of
DTC
wishes at any time to transfer its interest in such Regulation S Global Security
to a Person who wishes to take delivery thereof in the form of an interest
in a
Restricted Global Security, such holder may, subject to the rules and procedures
of DTC, exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Restricted Global Security. Upon receipt by the
Trustee, as Certificate Registrar, of (I) instructions from DTC directing
the
Trustee, as Certificate Registrar, to cause to be credited a beneficial interest
in a Restricted Global Security in an amount equal to the beneficial interest
in
such Regulation S Global Security to be exchanged but not less than the minimum
denomination applicable to such holder’s Certificates held through a Restricted
Global Security, to be exchanged, such instructions to contain information
regarding the participant account with DTC to be credited with such increase,
and (II) a certificate in the form of Exhibit V-2 hereto given by the holder
of
such beneficial interest and stating, among other things, that the Person
transferring such interest in such Regulation S Global Security reasonably
believes that the Person acquiring such interest in a Restricted Global Security
is a QIB, is obtaining such beneficial interest in a transaction meeting
the
requirements of Rule 144A under the Act and in accordance with any applicable
securities laws of any State of the United
71
States
or any other jurisdiction, then the Trustee, as
Certificate Registrar, will reduce the principal amount of the Regulation
S
Global Security and increase the principal amount of the Restricted Global
Security by the aggregate principal amount of the beneficial interest in
the
Regulation S Global Security to be transferred and the Trustee, as Certificate
Registrar, shall instruct DTC, concurrently with such reduction, to credit
or
cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the Restricted Global Security equal to the reduction
in the principal amount of the Regulation S Global Security.
(iv) Other
Exchanges. In the event that a Global Security is exchanged for Certificates
in
definitive registered form without interest coupons, pursuant to Section
3.09(c)
hereof, such Certificates may be exchanged for one another only in accordance
with such procedures as are substantially consistent with the provisions
above
(including certification requirements intended to insure that such transfers
comply with Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or are
to
non-U.S. persons in compliance with Regulation S under the Act, as the case
may
be), and as may be from time to time adopted by the Trustee.
(v) Restrictions
on U.S. Transfers. Transfers of interests in the Regulation S Global Security
to
U.S. persons (as defined in Regulation S) shall be limited to transfers made
pursuant to the provisions of Section 3.03(h)(iii).
Section
3.04 Cancellation
of Certificates.
Any
Certificate surrendered for registration of transfer or exchange shall be
cancelled and retained in accordance with normal retention policies with
respect
to cancelled certificates maintained by the Trustee or the Certificate
Registrar.
Section
3.05 Replacement
of Certificates.
If
(i)
any Certificate is mutilated and is surrendered to the Trustee or any
Authenticating Agent or (ii) the Trustee or any Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to any NIMS Insurer and the Trustee or
the
Authenticating Agent such security or indemnity as may be required by them
to
save each of them harmless, then, in the absence of notice to the Depositor
and
any Authenticating Agent that such destroyed, lost or stolen Certificate
has
been acquired by a bona fide purchaser, the Trustee shall execute and the
Trustee or any Authenticating Agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate,
a
new Certificate of like tenor and Certificate Principal Amount. 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.
72
Section
3.06 Persons
Deemed Owners.
Subject
to the provisions of Section 3.09 with respect to Book Entry Certificates,
the
Depositor, the Master Servicer, the Trustee, any NIMS Insurer, the Certificate
Registrar and any agent of any of them may treat the Person in whose name
any
Certificate is registered upon the books of the Certificate Registrar as
the
owner of such Certificate for the purpose of receiving distributions pursuant
to
Sections 5.01 and 5.02 and for all other purposes whatsoever, and neither
the
Depositor, the Master Servicer, the Trustee, any NIMS Insurer, the Certificate
Registrar nor any agent of any of them shall be affected by notice to the
contrary.
Section
3.07 Temporary
Certificates.
(a) Pending
the preparation of Definitive Certificates, upon the order of the Depositor,
the
Trustee shall execute and shall authenticate and deliver temporary Certificates
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the Definitive
Certificates in lieu of which they are issued and with such variations as
the
authorized officers executing such Certificates may determine, as evidenced
by
their execution of such Certificates.
(b) If
temporary Certificates are issued, the Depositor will cause Definitive
Certificates to be prepared without unreasonable delay. After the preparation
of
Definitive Certificates, the temporary Certificates shall be exchangeable
for
Definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Trustee without charge to the Holder. Upon surrender
for
cancellation of any one or more temporary Certificates, the Trustee shall
execute and authenticate and deliver in exchange therefor a like aggregate
Certificate Principal Amount of Definitive Certificates of the same Class
in the
authorized denominations. Until so exchanged, the temporary Certificates
shall
in all respects be entitled to the same benefits under this Agreement as
Definitive Certificates of the same Class.
Section
3.08 Appointment
of Paying Agent.
(a) The
Trustee hereby appoints itself as Paying Agent. The Trustee may appoint a
successor Paying Agent acceptable to the NIMS Insurer, 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 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.
(b) Any
Paying Agent shall be either a bank or trust company or otherwise authorized
under law to exercise corporate trust powers. A Paying Agent shall comply
with
its reporting
73
obligations
under Regulation AB with respect to the
Trust Fund in form and substance similar to those of the Trustee pursuant
to
Section 6.20(d)(iv) and Section 9.25, and the related assessment of compliance
and attestation shall cover, at a minimum, the matters indicated as obligations
with respect to the Paying Agent on Exhibit R attached hereto; provided that
if
the Trustee is the Paying Agent, any reporting obligations under Regulation
AB
specific to the Paying Agent shall be undertaken by the Trustee in the course
of
its own reporting and not separately, as further specified in Section
6.20(d)(iv) and Section 9.25. In addition, the Paying Agent (if other than
the
Trustee) shall notify the Sponsor, the Master Servicer and the Depositor
within
five (5) calendar days of knowledge thereof (i) of any legal proceedings
pending
against 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 S hereto or any of their Affiliates.
(c)
Any
Paying Agent agrees to indemnify the Depositor, the Trustee (if other than
the
Paying Agent) and the Master Servicer, 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 6.20 and Section 9.25(a), provided, however,
that
this sentence shall not apply if the Paying Agent is the Trustee. This
indemnification shall survive the termination of this Agreement or the
termination of such Paying Agent hereunder.
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. 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 Master Servicer, the Paying Agent, the 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
74
(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)
(A) the Depositor advises the Trustee in writing that the Clearing Agency
is no
longer willing or able to discharge properly its responsibilities with respect
to the Book-Entry Certificates, and (B) the Trustee or the Depositor is unable
to locate a qualified successor, or (ii) after the occurrence of an Event
of
Default, Certificate Owners representing beneficial interests aggregating
not
less than 50% of the Class Principal Amount 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.
ARTICLE
IV.
ADMINISTRATION
OF THE TRUST FUND
Section
4.01 Collection
Account.
(a) On
the
Closing Date, the Master Servicer shall open and shall thereafter maintain
a
segregated account held in trust (the “Collection Account”), entitled “Aurora
Loan Services LLC, as Master Servicer, in trust for the benefit of the Holders
of Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-20N” or its
nominee. The Collection Account shall
75
relate
solely to the Certificates issued by the Trust
Fund hereunder, and funds in such Collection Account shall not be commingled
with any other monies.
(b) The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Master Servicer shall establish
a
new Collection Account that is an Eligible Account within thirty days and
transfer all funds and investment property on deposit in such existing
Collection Account into such new Collection Account.
(c) The
Master Servicer shall give to the Trustee and any NIMS Insurer prior written
notice of the name and address of the depository institution at which the
Collection Account is maintained and the account number of such Collection
Account. The Master Servicer shall take such actions as are necessary to
cause
the depository institution holding the Collection Account to hold such account
in the name of the Master Servicer under this Agreement. No later than 2:00
p.m.
New York City time on each Deposit Date, the entire amount on deposit in
the
Collection Account (subject to permitted withdrawals set forth in Section
4.02),
other than amounts not included in the Total Distribution Amount for such
Distribution Date, shall be remitted to the Trustee for deposit into the
Certificate Account by wire transfer in immediately available funds. The
Master
Servicer, at its option (but with prior notice to the Trustee), may choose
to
make daily remittances from the Collection Account to the Trustee for deposit
into the Certificate Account.
(d) The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than the second Business Day following the Closing Date,
any
amounts received with respect to the Mortgage Loans representing Scheduled
Payments on the Mortgage Loans due after the Cut-off Date and unscheduled
payments received on or after the Cut-off Date and on or before the Closing
Date. Thereafter, the Master Servicer shall deposit or cause to be deposited
in
the Collection Account on the earlier of the applicable Deposit Date and
two
Business Days following receipt thereof, the following amounts received or
payments made by it (other than in respect of principal of and interest on
the
Mortgage Loans due on or before the Cut-off Date):
(i) all
payments on account of principal, including Principal Prepayments, late
collections, and any Prepayment Premiums, on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans, in all cases, net
of the
Servicing Fee with respect to each such Mortgage Loan, but only to the extent
of
the amount permitted to be withdrawn or withheld from the Collection Account
in
accordance with Sections 5.04 and 9.21;
(iii) any
unscheduled payment or other recovery with respect to a Mortgage Loan not
otherwise specified in this paragraph (d), including any Subsequent Recovery,
all Net Liquidation Proceeds with respect to the Mortgage Loans and REO
Property, and all amounts received in connection with the operation of any
REO
Property, net of (x) any unpaid Servicing Fees with respect to such Mortgage
Loans (but only to the extent of the amount permitted to be withdrawn or
withheld from the Collection Account in accordance with Sections 5.04 and
9.21)
and (y) any amounts reimbursable to the applicable Servicer with respect
to such
Mortgage Loan under the related Servicing Agreement and retained by such
Servicer;
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(iv) all
Insurance Proceeds;
(v) all
Advances made by the Master Servicer or the applicable Servicer pursuant
to
Section 5.04 or the related Servicing Agreement;
(vi) all
amounts paid by the applicable Servicer or the Master Servicer with respect
to
Prepayment Interest Shortfalls; and
(vii) the
Purchase Price of any Mortgage Loan repurchased by the Depositor, the Seller,
the Master Servicer or any other Person, and any Substitution Amount related
to
any Qualifying Substitute Mortgage Loan and any purchase price paid by any
NIMS
Insurer for the purchase of any Distressed Mortgage Loan under Section
7.04.
(e) Funds
in
the Collection Account may be invested in Eligible Investments selected by
and
at the written direction of the Master Servicer, which shall mature not later
than one Business Day prior to the Deposit Date (except that if such Eligible
Investment is an obligation of the Trustee, then such Eligible Investment
shall
mature not later than such applicable Deposit Date) and any such Eligible
Investment shall not be sold or disposed of prior to its maturity. All such
Eligible Investments shall be made in the name of the Master Servicer in
trust
for the benefit of the Trustee and the Holders of Xxxxxx XS Trust Mortgage
Pass-Through Certificates, Series 2007-20N. All income and gain realized
from
any Eligible Investment shall be for the benefit of the Master Servicer and
shall be subject to its withdrawal or order from time to time and shall not
be
part of the Trust Fund. The amount of any losses incurred in respect of any
such
investments shall be deposited in such Collection Account by the Master Servicer
out of its own funds, without any right of reimbursement therefor, immediately
as realized. The foregoing requirements for deposit in the Collection Account
are exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments of interest on funds in the Collection
Account and payments in the nature of late payment charges, assumption fees,
prepayment penalties with respect to mortgages for which the Seller does
not own
the servicing rights, and other incidental fees and charges relating to the
Mortgage Loans (other than Prepayment Premiums) need not be deposited by
the
Master Servicer in the Collection Account and may be retained by the Master
Servicer or the applicable Servicer as additional servicing compensation.
If the
Master Servicer deposits in the Collection Account any amount not required
to be
deposited therein, it may at any time withdraw such amount from such Collection
Account.
Section
4.02 Application
of Funds in the Collection Account.
(a) The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to
reimburse itself or any Servicer for Advances or Servicing Advances (excluding
Capitalization Reimbursement Amounts) made by it or by such Servicer pursuant
to
Section 5.04 or the applicable Servicing Agreement; such right to reimbursement
pursuant to this sub-clause (i) is limited to amounts received on or in respect
of a particular Mortgage Loan (including, for this purpose, Liquidation Proceeds
and amounts representing Insurance Proceeds with respect to the property
subject
to the related Mortgage) which represent late recoveries (net
77
of
the applicable Servicing Fee) of payments of
principal or interest respecting which any such Advance was made, it being
understood, in the case of any such reimbursement, that the Master Servicer’s or
Servicer’s right thereto shall be prior to the rights of the
Certificateholders;
(ii) to
reimburse itself or any Servicer, following a final liquidation of a Mortgage
Loan (except as otherwise provided in the applicable Servicing Agreement)
for
any previously unreimbursed Advances or Servicing Advances (excluding
Capitalization Reimbursement Amounts) made by it or by such Servicer (A)
that it
or such Servicer determines in good faith will not be recoverable from amounts
representing late recoveries of payments of principal or interest respecting
the
particular Mortgage Loan as to which such Advance or Servicing Advance was
made
or from Liquidation Proceeds or Insurance Proceeds with respect to such Mortgage
Loan and/or (B) to the extent that such unreimbursed Advances or Servicing
Advances exceed the related Liquidation Proceeds or Insurance Proceeds, it
being
understood, in the case of each such reimbursement, that such Master Servicer’s
or Servicer’s right thereto shall be prior to the rights of the
Certificateholders;
(iii) to
reimburse itself or any Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Sections 9.20 and 9.22(c)
or
the applicable Servicing Agreement in good faith in connection with the
restoration of damaged property and, to the extent that Liquidation Proceeds
after such reimbursement exceed the unpaid principal balance of the related
Mortgage Loan, together with accrued and unpaid interest thereon at the
applicable Mortgage Rate less the applicable Servicing Fee Rate, for such
Mortgage Loan to the Due Date next succeeding the date of its receipt of
such
Liquidation Proceeds, to pay to itself out of such excess the amount of any
unpaid assumption fees, late payment charges or other Mortgagor charges on
the
related Mortgage Loan and to retain any excess remaining thereafter as
additional servicing compensation, it being understood, in the case of any
such
reimbursement or payment, that such Master Servicer’s or Servicer’s right
thereto shall be prior to the rights of the Certificateholders;
(iv) to
reimburse itself or any Servicer for expenses incurred by and recoverable
by or
reimbursable to it or such Servicer pursuant to Sections 9.04, 9.05, 9.06,
9.07(a), 9.16, 9.30 or 11.15 or pursuant to the applicable Servicing
Agreement;
(v) to
pay to
the Depositor, the Seller or the Transferor, as applicable, with respect
to each
Mortgage Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon and not
distributed on the date on which the related repurchase was effected, and
to pay
to the applicable Person any Advances and Servicing Advances to the extent
specified in the definition of Purchase Price;
(vi) subject
to Section 5.05, to pay to itself income earned on the investment of funds
deposited in the Collection Account;
(vii) to
make
payments to the Trustee on each Deposit Date for deposit into the Certificate
Account in the amount provided in Section 4.04;
(viii) to
make
payment to itself, the Trustee and others pursuant to any other provision
of
this Agreement;
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(ix) to
withdraw funds deposited in error in the Collection Account;
(x) to
clear
and terminate the Collection Account pursuant to Section 7.02;
(xi) to
reimburse the Trustee and a successor master servicer (solely in its capacity
as
successor master servicer), for any fee or advance occasioned by a termination
of the Master Servicer, and the assumption of such duties by the Trustee
or a
successor master servicer appointed by the Trustee pursuant to Section 6.14,
in
each case to the extent not reimbursed by the terminated Master Servicer,
it
being understood, in the case of any such reimbursement or payment, that
the
right of the Master Servicer or the Trustee thereto shall be prior to the
rights
of the Certificateholders;
(xii) to
reimburse any Servicer for such amounts as are due thereto under the applicable
Servicing Agreement and have not been retained by or paid to such Servicer,
to
the extent provided in such Servicing Agreement; and
(xiii) to
reimburse itself or any Servicer for any unreimbursed Capitalization
Reimbursement Amounts solely from collections on account of
principal.
If
provided in its applicable Servicing Agreement, a Servicer shall be entitled
to
retain as additional servicing compensation any Prepayment Interest Excess
(to
the extent not offset by Prepayment Interest Shortfalls).
In
the
event that the Master Servicer fails on any Deposit Date to remit to the
Trustee
any amounts required to be so remitted to the Trustee pursuant to sub-clause
(viii) by such date, the Master Servicer shall pay the Trustee, for the account
of the Trustee, interest calculated at the “prime rate” (as published in the
“Money Rates” section of The Wall Street Journal) on such amounts not timely
remitted for the period from and including that Deposit Date to but not
including the related Distribution Date. The Master Servicer shall only be
required to pay the Trustee interest for the actual number of days such amounts
are not timely remitted (e.g., one day’s interest, if such amounts are remitted
one day after the Deposit Date).
In
connection with withdrawals pursuant to sub-clauses (i), (ii), (iii), and
(vi)
above, the Master Servicer’s, any Servicer’s or such other Person’s entitlement
thereto is limited to collections or other recoveries on the related Mortgage
Loan. The Master Servicer shall therefore keep and maintain a separate
accounting for each Mortgage Loan it master services for the purpose of
justifying any withdrawal from the Collection Account it maintains pursuant
to
such sub-clause (i), (ii), (iii) and (vi).
Any
withdrawals described in this section shall be allocated and limited to
collections or other recoveries on the related Mortgage Pool and shall be
accounted for in such manner.
(b) The
Trustee shall afford the NIMS Insurer upon reasonable notice, during normal
business hours, access to all records maintained by the Trustee in respect
of
its duties hereunder and access to officers of the Trustee responsible for
performing such duties. The Trustee shall cooperate fully with the NIMS Insurer
and shall make available to the NIMS Insurer for review and copying at the
expense of the NIMS Insurer such books, documents or records as may be requested
with respect to the Trustee’s duties hereunder. The NIMS Insurer shall not have
any
79
responsibility
or liability for any action or failure to
act by the Trustee and is not obligated to supervise the performance of the
Trustee under this Agreement or otherwise. The Trustee shall also afford
the
NIMS Insurer, upon reasonable notice, during normal business hours, access
to
the Mortgage Files and shall cause the Master Servicer and the Servicer to
provide such access to the Mortgage Files.
Section
4.03 Reports
to Certificateholders.
(a) On
each
Distribution Date, the Trustee shall prepare (based on information provided
by
the Master Servicer, the Cap Providers or the Swap Counterparty) and shall
make
available to the Certificateholders, the Swap Counterparty and any NIMS Insurer
a written report setting forth the following information (on the basis of
Mortgage Loan level information obtained from the Servicers and in the case
of
clause (xviii) below, based on information provided by the Trustee (or the
Paying Agent on behalf of the Trustee)):
(i) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of LIBOR Certificates and Subordinate Certificates
(other
than any Class of Notional Certificates) allocable to principal on the Mortgage
Loans, including any Subsequent Recovery, Liquidation Proceeds and Insurance
Proceeds, stating separately the amount attributable to scheduled principal
payments and unscheduled payments in the nature of principal;
(ii) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of LIBOR Certificates, Subordinate Certificates and
Notional Certificates allocable to interest and the calculation
thereof;
(iii) the
amount, if any, of any distributions to the Holders of the Class C, Class
AP,
Class X and Class R Certificates on such Distribution Date, stated separately,
and the aggregate amounts, if any, of distributions to the Holders of the
Class
C, Class X and Class R Certificates on all Distribution Dates, stated
separately;
(iv) (A)
the
aggregate amount of any Advances required to be made as of the end of the
month
immediately preceding the month in which such Distribution Date occurs by
any
Servicer with respect to such Distribution Date, (B) the aggregate amount
of
such Advances actually made, and (C) the amount, if any, by which (A) above
exceeds (B) above;
(v) the
total
number of Mortgage Loans, the aggregate Scheduled Principal Balance of all
the
Mortgage Loans as of the close of business on the last day of the related
Collection Period, after giving effect to payments allocated to principal
reported under clause (i) above;
(vi) the
Class
Principal Amount (or Class Notional Amount) of each Class of Certificates,
to
the extent applicable, as of such Distribution Date after giving effect to
payments allocated to principal reported under clause (i) above, separately
identifying any reduction of any of the foregoing Certificate Principal Amounts
due to any Applied Loss Amounts;
(vii) the
amount of any Realized Losses incurred with respect to the Mortgage Loans
(x) in
the applicable Prepayment Period and (y) in the aggregate since the Cut-off
Date;
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(viii) the
amount of the Servicing Fees paid during the Collection Period to which such
distribution relates;
(ix) the
number and aggregate Scheduled Principal Balance of Mortgage Loans, as reported
to the Trustee by the Master Servicer, (a) remaining outstanding, (b) Delinquent
30 to 59 days on a contractual basis, (c) Delinquent 60 to 89 days on a
contractual basis, (d) Delinquent 90 or more days on a contractual basis,
(e) as
to which foreclosure proceedings have been commenced, all as of the close
of
business on the last Business Day of the calendar month immediately preceding
the month in which such Distribution Date occurs, (f) in bankruptcy and (g)
that
are REO Properties (the information in this item (ix) to be calculated utilizing
the ABS delinquency method);
(x) the
aggregate Scheduled Principal Balance of any Mortgage Loans with respect
to
which the related Mortgaged Property became a REO Property as of the close
of
business on the last Business Day of the calendar month immediately preceding
the month in which such Distribution Date occurs;
(xi) with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan, and of each
Qualifying Substitute Mortgage Loan;
(xii) the
aggregate outstanding Carryforward Interest, Net Prepayment Interest Shortfalls,
Deferred Amounts, Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls,
if
any, for each applicable Class of Certificates, after giving effect to the
distribution made on such Distribution Date;
(xiii) the
Certificate Interest Rate applicable to such Distribution Date with respect
to
each Class of Certificates (with a notation if such Certificate Interest
Rate
reflects the application of the Net Funds Cap);
(xiv) the
Interest Remittance Amount, the Principal Remittance Amount, the Principal
Distribution Amount and the Overcollateralization Release Amount applicable
to
such Distribution Date;
(xv) if
applicable, the amount of any shortfall (i.e., the difference between the
aggregate amounts of principal and interest which Certificateholders would
have
received if there were sufficient available amounts in the Certificate Account
and the amounts actually distributed);
(xvi) the
Overcollateralization Amount after giving effect to the distributions made
on
such Distribution Date;
(xvii) the
amount of any Overcollateralization Deficiency after giving effect to the
distributions made in such Distribution Date;
(xviii) the
level
of LIBOR;
81
(xix) the
amount of any payments made to each Class of Certificates that are treated
as
payments received in respect of a REMIC 3 Regular Interest and the amount of
any
payments to each Class of Certificates that are not treated as payments received
in respect of a REMIC 3 Regular Interest;
(xx) reserved;
(xxi) the
amount of any Net Swap Payment to the Supplemental Interest Trust made pursuant
to Section 5.02, any Net Swap Payment to the Swap Counterparty made pursuant
to
Section 5.02, any Swap Termination Payment to the Supplemental Interest Trust
made pursuant to Sections 5.02 and any Swap Termination Payment to the Swap
Counterparty made pursuant to Section 5.02; and
(xxii) the
amount of any payments made by the Cap Provider under the Interest Rate Cap
Agreement.
In
the
case of information furnished pursuant to sub-clauses (i), (ii) and (viii)
above, the amounts shall (except with respect to the Class X Certificates)
be
expressed as a dollar amount per $1,000 of original principal amount of
Certificates.
The
Trustee, the Master Servicer and the Sponsor will negotiate in good faith with
the Rating Agencies to reach agreement on the reporting of any additional
information concerning loan modifications to be included in the monthly report
to Certificateholders.
In
addition to the information listed above for any year in which the Depositor
is
subject to Exchange Act reporting with respect to the Certificates, such
Distribution Date report shall also include such other information as is
required by Form 10-D, including, but not limited to, the information required
by Item 1121 (§ 229.1121) of Regulation AB to the extent that the Trustee
shall have received any such information from the Depositor, the Sponsor, the
Master Servicer, any Servicer, any Custodian, the Cap Provider or any
Subservicer or Subcontractor therefor, as applicable, no later than four
Business Days prior to the Distribution Date.
The
Trustee will make such report and additional loan level information (and, at
its
option, any additional files containing the same information in an alternative
format) provided to it by the Master Servicer available each month to
Certificateholders, any NIMS Insurer, and the Rating Agencies via the Trustee’s
internet website. The Trustee’s internet website shall initially be located at
xxxx://xxxxxxxxxxxxxxxxxxxxxx.xxx and assistance in using the website can be
obtained by emailing the Trustee’s customer service desk at
xx.xxxxxxxxxxx.xxxxxxxx@xxxxxx.xxx. 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.
The
Trustee shall provide a “zero settlement file” to Bloomberg L.P. within seven
(7) calendar days after the receipt of the collateral data file from the
Depositor, but in no event later than the first Distribution Date, which shall
contain all of the information in the initial Monthly
82
Report
(without giving effect to any distributions);
provided, however, that in no event will such zero settlement file contain
any
mortgagor-specific information.
The
foregoing information and reports shall be prepared and determined by the
Trustee based solely on Mortgage Loan data provided to the Trustee by the Master
Servicer (in a format agreed to by the Trustee and the Master Servicer) no
later
than 2:00 p.m. Eastern Time four Business Days prior to the Distribution Date
or
such other time period as set forth in Section 9.23(c). In preparing or
furnishing the foregoing information, the Trustee shall be entitled to rely
conclusively on the accuracy and completeness of the information or data (i)
regarding the Mortgage Loans and the related REO Property that has been provided
to the Master Servicer by the Servicer and to the Trustee by the Master
Servicer, (ii) regarding the Interest Rate Cap Agreement that has been provided
to the Trustee by the Cap Provider and (iii) regarding the Swap Agreement that
has been provided to the Trustee by the Swap Counterparty, and the Trustee
shall
not be obligated to verify, recompute, reconcile or recalculate any such
information or data. The Trustee shall be entitled to conclusively rely on
the
Mortgage Loan data provided by the Master Servicer and shall have no liability
for any errors or omissions in such Mortgage Loan data. The Master Servicer
shall be entitled to conclusively rely on the Mortgage Loan data provided by
each Servicer and shall have no liability for any errors or omissions in such
Mortgage Loan data.
(b) Upon
the
reasonable advance written request of any Certificateholder that is a savings
and loan, bank or insurance company (which request, if received by the Trustee
will be promptly forwarded to the Master Servicer), the Master Servicer shall
provide, or cause to be provided, to the extent such information is available
to
the Master Servicer exercising reasonable efforts to obtain such information
(or, to the extent that such information or documentation is not required to
be
provided by the applicable Servicer under the related Servicing Agreement,
shall
use reasonable efforts to obtain such information and documentation from such
Servicer, and provide) to such Certificateholder such reports and access to
information and documentation regarding the Mortgage Loans as such
Certificateholder may reasonably deem necessary to comply with applicable
regulations of the Office of Thrift Supervision or its successor or other
regulatory authorities with respect to the NIM Securities or an investment
in
the Certificates; provided, however, that the Master Servicer shall be entitled
to be reimbursed by such Certificateholder for the actual expenses incurred
in
providing such reports and access.
(c) Within
90
days, or such shorter period as may be required by statute or regulation, after
the end of each calendar year, the Trustee shall, upon written request, have
prepared and shall make available to each Person who at any time during the
calendar year was a Certificateholder of record, and to any NIMS Insurer, and
make available to Certificate Owners (identified as such by the Clearing Agency)
in accordance with applicable regulations, a report summarizing the items
provided to the Certificateholders pursuant to Section 4.03(a)(i) and (ii)
on an
annual basis as may be required to enable such Holders to prepare their federal
income tax returns; provided, however that this Section 4.03(c) shall not be
applicable where relevant reports or summaries are required elsewhere in this
Agreement. Such information shall include the amount of original issue discount
accrued on each Class of Certificates and information regarding the expenses
of
the Trust Fund. The Trustee shall be deemed to have satisfied this requirement
if it forwards such information in any other format permitted by the Code.
The
Master Servicer shall provide the Trustee with such information (to the extent
readily available to the Master Servicer) as is necessary for the Trustee to
prepare such reports.
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(d) The
Trustee shall prepare and file with the IRS, on behalf of the Trust Fund, 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 Master Servicer and the Depositor. The Trustee shall furnish any other
information that is required by the Code and regulations thereunder to be made
available to Certificateholders. The Master Servicer shall provide the Trustee
with such information (to the extent readily available to the Master Servicer)
as is necessary for the Trustee to comply with the foregoing.
Section
4.04 The
Certificate Account.
(a) The
Trustee shall establish and maintain in its name, as trustee, a trust account
(the “Certificate Account”) entitled “Certificate Account, U.S. Bank National
Association, as Trustee, in trust for the benefit of the Holders of Xxxxxx
XS
Trust Mortgage Pass-Through Certificates, Series 2007-20N” until disbursed
pursuant to the terms of this Agreement. The Certificate Account shall be an
Eligible Account and shall be for the benefit of the Certificateholders. If
the
existing Certificate Account ceases to be an Eligible Account, the Trustee
shall
establish a new Certificate Account that is an Eligible Account within 20
Business Days and transfer all funds and investment property on deposit in
such
existing Certificate Account into such new Certificate Account. The Certificate
Account shall relate solely to the Certificates issued hereunder and funds
in
the Certificate Account shall be held separate and apart from and shall not
be
commingled with any other monies including, without limitation, other monies
of
the Trustee held under this Agreement. The Trustee shall give to the Depositor,
Master Servicer and any NIMS Insurer prior written notice of the name and
address of the depository institution at which the Certificate Account is
maintained and the account number of such Certificate Account.
(b) The
Trustee shall deposit or cause to be deposited into the Certificate Account,
on
the day on which, or, if such day is not a Business Day, the Business Day
immediately following the day on which, any monies are remitted by the Master
Servicer to the Trustee, all such amounts. The Trustee shall make withdrawals
from the Certificate Account only for the following purposes:
(i) to
pay
itself any investment income earned with respect to funds in the Certificate
Account invested in Eligible Investments as set forth in subsection (c) below,
and to make payments to itself and others prior to making distributions pursuant
to Section 5.02 for any expenses or other indemnification owing to itself and
others pursuant to any provision of this Agreement or any Custodial Agreement;
provided that such payments are for “unanticipated expenses” within the meaning
of Treasury Regulation Section 1.860G-1(b)(3)(ii);
(ii) to
make
payment to itself pursuant to any provision of this Agreement, or to reimburse
itself or its agents for any amounts reimbursable to it pursuant to Sections
6.11,
84
6.12
or 7.01; provided that such payments are for
“unanticipated expenses” within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii);
(iii) to
withdraw amounts deposited in the Certificate Account in error;
(iv) to
make
payments to itself and others pursuant to any provision of this
Agreement;
(v) reserved;
and
(vi) to
clear
and terminate the Certificate Account pursuant to Section 7.02.
Any
withdrawals described in the preceding sentence shall be allocated and limited
to collections or other recoveries on the related Mortgage Pool and shall be
accounted for in such manner.
(c) The
Trustee may invest, or cause to be invested, funds held in the Certificate
Account, which funds, if invested, shall be invested in Eligible Investments
(which may be obligations of the Trustee). All such investments must be payable
on demand or mature no later than the next Distribution Date, and shall not
be
sold or disposed of prior to their maturity. All such Eligible Investments
will
be made in the name of the Trustee (in its capacity as such) or its nominee.
All
income and gain realized from any such investment shall be compensation to
the
Trustee and shall be subject to its withdrawal on order from time to time.
The
amount of any losses incurred in respect of any such investments shall be paid
by the Trustee for deposit in the Certificate Account out of its own funds,
without any right of reimbursement therefor, immediately as
realized.
Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Eligible Investment, or if a default occurs
in
any other performance required under any Eligible Investment, the Trustee may
and, subject to Section 6.01 and Section 6.02(iv), upon the request of the
NIMS
Insurer, shall take such action as may be appropriate to enforce such payment
or
performance, including the institution and prosecution of appropriate
proceedings.
ARTICLE
V.
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
Section
5.01 Distributions
Generally.
(a) Subject
to Section 7.01 respecting the final distribution on the Certificates, on each
Distribution Date the Trustee or the Paying Agent shall make distributions
in
accordance with this Article V. Such distributions shall be made by wire
transfer if the Certificateholder has provided the Trustee with wire
instructions or by check mailed to the address of such Certificateholder as
it
appears in the books of the Trustee if the Certificateholder has not provided
the Trustee with wire instructions in immediately available funds to an account
specified in the request and at the expense of such Certificateholder; provided,
however, that the final distribution in respect of any Certificate shall be
made
only upon presentation and surrender
85
of
such Certificate at the Corporate Trust Office;
provided, further, that the foregoing provisions shall not apply to any Class
of
Certificates as long as such Certificate remains a Book-Entry Certificate in
which case all payments made shall be made through the Clearing Agency and
its
Clearing Agency Participants. Notwithstanding such final payment of principal
of
any of the Certificates, each Residual Certificate will remain outstanding
until
the termination of each REMIC and the payment in full of all other amounts
due
with respect to the Residual Certificates and at such time such final payment
in
retirement of any Residual Certificate will be made only upon presentation
and
surrender of such Certificate at the Corporate Trust Office. If any payment
required to be made on the Certificates is to be made on a day that is not
a
Business Day, then such payment will be made on the next succeeding Business
Day.
(b) All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates of such Class equally in proportion to their respective initial
Class Principal Amounts or initial Class Notional Amounts (or Percentage
Interests).
(c) The
Trustee shall make payments to Certificateholders and the Swap Counterparty
and
any other person pursuant to this Article V based solely on the information
set
forth in the monthly report furnished by the Trustee in accordance with Section
4.03(a), and shall be entitled to conclusively rely on such information and
reports, and on the calculations contained therein, when making distributions
to
Certificateholders and the Swap Counterparty. The Trustee shall have no
liability for any errors in such reports or information, and shall not be
required to verify, recompute, reconcile or recalculate any such information
or
data.
Section
5.02 Distributions
from the Certificate Account.
(a) On
each
Distribution Date, the Trustee (or the Paying Agent on behalf of the Trustee)
shall withdraw from the Certificate Account the Total Distribution Amount
(excluding all Prepayment Premiums) and amounts that are available for payment
to the Swap Counterparty and shall allocate such amount to the interests issued
in respect of each REMIC and shall distribute such amount as specified in this
Section.
(b) On
each
Distribution Date, the Interest Remittance Amount for such date will be
distributed in the following order of priority:
(i) for
deposit into the Supplemental Interest Trust Account, any Net Swap Payment
or
Swap Termination Payment (not due to a Swap Counterparty Trigger Event) owed
to
the Swap Counterparty (including amounts remaining unpaid from previous
Distribution Dates);
(ii) concurrently,
to each Class of Senior Certificates, Current Interest and any Carryforward
Interest for such Classes for such Distribution Date; provided, however, that
if
funds available are insufficient to pay such amounts, any resulting shortfalls
will be allocated pro
rata
on the
basis of Current Interest and Carryforward Interest due such Classes on such
Distribution Date;
(iii) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
Current Interest and any Carryforward Interest for such Classes for such
Distribution Date;
86
(iv) to
the
Trustee, previously unreimbursed extraordinary costs, liabilities and expenses;
and
(v) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in Section 5.02(d), any such Interest Remittance Amount remaining
after
application pursuant to clauses (i) through (iv) above.
(c) On
each
Distribution Date, the Trustee shall distribute the Principal Distribution
Amount for such date as follows:
(i) On
each
Distribution Date (or, in the case of payments to the Swap Counterparty, the
Business Day prior to each Distribution Date) (a) prior to the Stepdown Date
or
(b) with respect to which a Trigger Event is in effect, until the aggregate
Certificate Principal Amount of the Senior Certificates and the Subordinate
Certificates equals the Target Amount for such Distribution Date, the Trustee
shall distribute the Principal Distribution Amount in the following order of
priority:
(A) for
deposit into the Supplemental Interest Trust Account, any Net Swap Payment
or
Swap Termination Payment not due to a Swap Counterparty Trigger Event owed
to
the Swap Counterparty (to the extent not paid previously or from the Interest
Remittance Amount in accordance with Section 5.02(b));
(B) up
to the
amount of any Net Negative Amortization previously allocated to the Senior
Certificates and not repaid, to each Class of the Senior Certificates,
pro
rata,
based on
the amount of such unpaid prior allocations of Net Negative Amortization to
each
Class thereof;
(C) pro
rata
to each
Class of the Senior Certificates (other than the Class AX Certificates) until
the Class Principal Amount of each such Class has been reduced to
zero;
(D) to
the
Class M1, Class M2, Class M3, Class M4, Class M5 and Class M6 Certificates,
sequentially, in that order, in each case until the Class Principal Amount
of
each such Class has been reduced to zero; and
(E) for
application as part of the Monthly Excess Cashflow for such Distribution Date,
pursuant to Section 5.02(d), any such Principal Distribution Amount remaining
after application pursuant to clauses (A) through (D) above.
(ii) On
each
Distribution Date (or, in the case of payments to the Swap Counterparty, the
Business Day prior to each Distribution Date) (a) on or after the Stepdown
Date
and (b) with respect to which a Trigger Event is not in effect, the Principal
Distribution Amount for such date will be distributed in the following order
of
priority:
(A) for
deposit into the Supplemental Interest Trust Account any Net Swap Payment or
Swap Termination Payment not due to a Swap Counterparty Trigger Event owed
to
the Swap Counterparty (to the extent not paid previously
87
or
from the Interest Remittance Amount in accordance
with Section 5.02(b));
(B) (a)
for
so long as any of the Subordinate Certificates are outstanding, to the Senior
Certificates (other than the Class AX Certificates), in accordance with the
priorities set forth in Section 5.02(c)(i), in an amount equal to the lesser
of
(x) the Principal Distribution Amount for such Distribution Date less any Net
Swap Payment or Swap Termination Payment paid on such Distribution Date pursuant
to Section 5.02(c)(ii)(A) and (y) the Senior Principal Distribution Amount
such
Distribution Date until the Class Principal Amount of each such Class has been
reduced to zero; or (b) otherwise to the Senior Certificates (other than the
Class AX Certificates and in accordance with Section 5.02(c)(i)), the Principal
Distribution Amount for such Distribution Date less any Net Swap Payment or
Swap
Termination Payment paid on such Distribution Date pursuant to Section
5.02(c)(ii)(A) above;
(C) to
the
Class M1 Certificates, an amount equal to the lesser of (x) the excess of (a)
the Principal Distribution Amount for such Distribution Date over (b) the amount
distributed to the Senior Certificates on such Distribution Date pursuant to
clause (B) above and any Net Swap Payment or Swap Termination Payment paid
on
such Distribution Date pursuant to clause (A) above and (y) the M1 Principal
Distribution Amount for such Distribution Date, until the Class Principal Amount
of such Class has been reduced to zero;
(D) to
the
Class M2 Certificates, an amount equal to the lesser of (x) the excess of (a)
the Principal Distribution Amount for such Distribution Date over (b) the amount
distributed to the Senior Certificates and the Class M1 Certificates on such
Distribution Date pursuant to clauses (B) and (C) above and any Net Swap Payment
or Swap Termination Payment paid on such Distribution Date pursuant to clause
(A) above and (y) the M2 Principal Distribution Amount for such Distribution
Date, until the Class Principal Amount of such Class has been reduced to
zero;
(E) to
the
Class M3 Certificates, an amount equal to the lesser of (x) the excess of (a)
the Principal Distribution Amount for such Distribution Date over (b) the amount
distributed to the Senior Certificates and the Class M1 and Class M2
Certificates on such Distribution Date pursuant to clauses (B) through (D)
above
and any Net Swap Payment or Swap Termination Payment paid on such Distribution
Date pursuant to clause (A) above and (y) the M3 Principal Distribution Amount
for such Distribution Date, until the Class Principal Amount of such Class
has
been reduced to zero;
(F) to
the
Class M4 Certificates, an amount equal to the lesser of (x) the excess of (a)
the Principal Distribution Amount for such Distribution Date over (b) the amount
distributed to the Senior Certificates and the Class M1, Class M2 and Class
M3
Certificates on such Distribution Date pursuant to clauses (B) through (E)
above
and any Net Swap Payment or Swap Termination Payment
88
paid
on such Distribution Date pursuant to clause (A)
above and (y) the M4 Principal Distribution Amount for such Distribution Date,
until the Class Principal Amount of such Class has been reduced to
zero;
(G) to
the
Class M5 Certificates, an amount equal to the lesser of (x) the excess of (a)
the Principal Distribution Amount for such Distribution Date over (b) the amount
distributed to the Senior Certificates and the Class M1, Class M2, Class M3
and
Class M4 Certificates on such Distribution Date pursuant to clauses (B) through
(F) above and any Net Swap Payment or Swap Termination Payment paid on such
Distribution Date pursuant to clause (A) above and (y) the M5 Principal
Distribution Amount for such Distribution Date, until the Class Principal Amount
of such Class has been reduced to zero;
(H) to
the
Class M6 Certificates, an amount equal to the lesser of (x) the excess of (a)
the Principal Distribution Amount for such Distribution Date over (b) the amount
distributed to the Senior Certificates and the Class M1, Class M2, Class M3,
Class M4 and Class M5 Certificates on such Distribution Date pursuant to clauses
(B) through (G) above and any Net Swap Payment or Swap Termination Payment
paid
on such Distribution Date pursuant to clause (A) above and (y) the M6 Principal
Distribution Amount for such Distribution Date, until the Class Principal Amount
of such Class has been reduced to zero; and
(I) for
application as part of the Monthly Excess Cashflow for such Distribution Date
pursuant to Section 5.02(d), any Principal Distribution Amount remaining after
application pursuant to clauses (A) through (H) above.
(d) Any
Monthly Excess Cashflow will, on each Distribution Date, after distributions
are
made pursuant to Section 5.02(e), be distributed in the following order of
priority:
(i) To
the
extent unpaid pursuant to 5.02(b) above:
(a) to
the
Senior Certificates, on a pro
rata
basis,
Current Interest and Carryforward Interest for such classes for such
Distribution Date;
(b) sequentially,
to the
Subordinate Certificates, Current Interest and Carryforward Interest for such
classes for such Distribution Date;
(ii) for
each
Distribution Date occurring (a) before the Stepdown Date or (b) on or after
the
Stepdown Date but for which a Trigger Event is in effect, then until the
aggregate Certificate Principal Amount of the LIBOR Certificates and Subordinate
Certificates equals the Target Amount for such Distribution Date, in the
following order of priority:
(a)
after
giving effect to principal distributions on such Distribution Date, to the
Senior Certificates (other than the Class AX Certificates), in accordance with
Section 5.02(c)(i), in reduction of their respective Class Principal Amounts,
until the Class Principal Amount of each such Class has been reduced to
zero;
89
(b) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, until
the
Class Principal Amount of each such Class has been reduced to zero;
(iii) for
each
Distribution Date occurring on or after the Stepdown Date and for which a
Trigger Event is not in effect, in the following order of priority:
(a)
after
giving effect to principal distributions on such Distribution Date, to the
Senior Certificates (other than the Class AX Certificates), in accordance with
Section 5.02(c)(i), in reduction of their respective Class Principal Amounts,
until the aggregate Class Principal Amount of such Senior Certificates, after
giving effect to distributions on such Distribution Date, equals the Senior
Target Amount;
(b) to
the
Class M1 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class M1
Certificates, after giving effect to distributions on such Distribution Date,
equals the M1 Target Amount;
(c) to
the
Class M2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class M1
and
Class M2 Certificates, after giving effect to distributions on such Distribution
Date, equals the M2 Target Amount;
(d) to
the
Class M3 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class M1,
Class M2 and Class M3 Certificates, after giving effect to distributions on
such
Distribution Date, equals the M3 Target Amount;
(e) to
the
Class M4 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class M1,
Class M2, Class M3 and Class M4 Certificates, after giving effect to
distributions on such Distribution Date, equals the M4 Target
Amount;
(f) to
the
Class M5 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class M1,
Class M2, Class M3, Class M4 and Class M5 Certificates, after giving effect
to
distributions on such Distribution Date, equals the M5 Target
Amount;
(g) to
the
Class M6 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Senior Certificates and the Class M1,
Class M2, Class M3, Class M4, Class M5 and Class M6 Certificates, after giving
effect to distributions on such Distribution Date, equals the M6 Target
Amount;
(iv) to
the
Basis Risk Reserve Fund, the amount of any Basis Risk Payment and then from
the
Basis Risk Reserve Fund, in the following order of priority:
(a) from
any
proceeds received under the Interest Rate Cap Agreement, first, to the Senior
Certificates (other than the Class AX Certificates), any
90
Basis
Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such class and such Distribution Date, pro
rata
in
accordance with such shortfalls and second, to the C-X
Component;
(b) to
the
Senior Certificates (other than the Class AX Certificates), any Basis Risk
Shortfalls and Unpaid Basis Risk Shortfalls to the extent not paid pursuant
to
Sections 5.02(d)(iv)(a), pro
rata
in
proportion to such shortfalls;
(c) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, any
applicable Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls;
and
(d) for
addition to the amounts distributable pursuant to Section 5.02(d)(vi), amounts
remaining in the Basis Risk Reserve Fund in excess of amounts required to be
on
deposit therein after satisfying clauses (a) through (c) above for such
Distribution Date;
(v) (a)
first, in proportion to their respective Deferred Amounts, to the Senior
Certificates (other than the Class AX Certificates) and (b) second, to the
Subordinate Certificates, in accordance with the Subordinate Priority, any
Deferred Amount for each such Class and such Distribution Date;
(vi) to
the
Supplemental Interest Trust, for distribution pursuant to Sections 5.02(e)(viii)
and 5.02(e)(ix); and
(vii) to
the
Residual Certificate, any remaining amount.
(e) On
each
Distribution Date (or, with respect to clauses (i), (ii) and (viii) below,
on
the related Swap Payment Date), the Trustee shall distribute the Supplemental
Interest Trust Amount, together with any investment earnings on deposit in
the
Supplemental Interest Trust Account, before distributions are made pursuant
to
Section 5.02(d), for such date as follows:
(i) to
the
Swap Counterparty, any Net Swap Payment owed to the Swap Counterparty pursuant
to the Swap Agreement for the related Distribution Date;
(ii) to
the
Swap Counterparty, any unpaid Swap Termination Payment not due to a Swap
Counterparty Trigger Event owed to the Swap Counterparty pursuant to the Swap
Agreement;
(iii) to
the
Senior Certificates (other than the Class AX Certificates), Current Interest
and
any Carryforward Interest for each such Class for such Distribution Date, in
the
priority described in Section 5.02(b) above;
(iv) to
the
Senior Certificates (other than the Class AX Certificates), an amount equal
to
the lesser of (A) the remaining amount available for distribution and (B) the
product of (i) the applicable Scheduled Notional Amount, (ii) the excess, if
any, of (x) the lesser of (1) 1-Month LIBOR and (2) 6.720% over (y) the
applicable Rate of Payment for such Distribution Date and (iii) a fraction,
the
numerator of which is the actual number of days in the related Accrual Period
and the denominator of which is 360, to pay certain amounts necessary to
91
maintain
the Overcollateralization Target Amount set
forth in Sections 5.02(d)(ii) and 5.02(d)(iii);
(v) to
the
Senior Certificates (other than the Class AX Certificates), any Basis Risk
Shortfalls and Unpaid Basis Risk Shortfalls for each such Class and for such
Distribution Date, for application pursuant to the priorities set forth in
Sections 5.02(d)(iv)(a);
(vi) in
proportion to their respective Deferred Amounts, to the Senior Certificates
(other than the Class AX Certificates), any Deferred Amount for each such Class
and such Distribution Date;
(vii) if
applicable, for application to the purchase of a replacement interest rate
swap
agreement;
(viii) to
the
Swap Counterparty, any unpaid Swap Termination Payment triggered by a Swap
Counterparty Trigger Event owed to the Swap Counterparty pursuant to the Swap
Agreement; and
(ix) to
the X
Component of the Class X Certificates, the X Component Distributable Amount
for
such Distribution Date and to the S-X Component of the Class X Certificates
any
remaining Supplemental Interest Trust Amount.
Notwithstanding
the foregoing, the sum of the amounts distributed on all Distribution Dates
pursuant to Sections 5.02(e)(iv) and Section 5.02(e)(vi) shall not exceed the
aggregate amount of Realized Losses incurred from the Cut-off Date through
the
last day of the related Collection Period.
(f) (1) On
each
Distribution Date on and prior to the X Component Account Termination Date,
the
Trustee shall withdraw the Class C Distributable Amount for such Distribution
Date from the X Component Account, pursuant to Section 5.13 herein, and shall
distribute such amount to the Class C Certificates.
(2) On
each
Distribution Date on or prior to the Class X Termination Date, the Trustee
shall
withdraw amounts on deposit in the X Component Account and distribute such
amounts to the Class X Certificates, an amount equal to the excess, if any,
of
the sum of Realized Losses attributable to the Class C Mortgage Loans over
the
sum of all amounts distributed pursuant to this Section 5.02(f)(2) on prior
Distribution Dates to the Class X Certificates.
(g) On
each
Distribution Date, the Trustee (or Paying Agent, as applicable) shall distribute
to the Holders of the Class AP Certificates, any Prepayment Premiums paid by
borrowers upon voluntary full or partial prepayment of the Mortgage
Loans.
(h) On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the holders of the Senior Certificates, an Interest Rate Cap
Account. The Trustee shall deposit all amounts received on the Interest Rate
Cap
Agreement into the Interest Rate Cap Account. The Interest Rate Cap Account
shall be an Eligible Account, and funds on deposit therein shall be held
separate and apart from, and shall not be commingled with, any
92
other
moneys, including, without limitation, other
moneys of the Trustee held pursuant to this Agreement. On each Distribution
Date, the Trustee shall distribute the amounts in the Interest Rate Cap Account
pursuant to Section 5.02(d)(iv) hereof.
(i) Any
Net
Negative Amortization will be allocated to the Senior Certificates (other than
the Class AX Certificates) and Subordinate Certificates pro
rata
according to the Class Principal Amount of each such Class of Certificates,
in
reduction of the amount of interest otherwise distributable to such Classes
of
Certificates; provided, however, that to the extent the amount of Net Negative
Amortization otherwise allocable to such Certificates exceeds the amount of
Current Interest accrued on the related REMIC 3 Interest of such Certificates,
then such excess Net Negative Amortization shall be allocated to the Class
X
Certificates to the extent payments would otherwise be made to the Class X
Certificates in respect of the Uncertificated Class X Interest, and then, if
necessary, among such Senior Certificates and Subordinate Certificates in
proportion to, and up to, the amount of any remaining interest otherwise
distributable on the related REMIC 3 Interest of such Certificates and to the
extent necessary any remaining Net Negative Amortization will result in
Carryforward Interest (but shall not reduce Current Interest) for the Class
AX
Certificates.
The
amount of the reduction of Current Interest distributable to each Class of
Certificates attributable
to
Net Negative Amortization will be added to the Class Principal Amount of that
Class.
Section
5.03 Allocation
of Losses.
(a) On
each
Distribution Date, the aggregate Class Principal Amount of the Certificates
shall be reduced by the amount of any Applied Loss Amount for such date, in
the
following order of priority:
(i) to
the
Class M6 Certificates, until the Class Principal Amount of such Class has been
reduced to zero;
(ii) to
the
Class M5 Certificates, until the Class Principal Amount of such Class has been
reduced to zero;
(iii) to
the
Class M4 Certificates, until the Class Principal Amount of such Class has been
reduced to zero;
(iv) to
the
Class M3 Certificates, until the Class Principal Amount of such Class has been
reduced to zero;
(v) to
the
Class M2 Certificates, until the Class Principal Amount of such Class has been
reduced to zero;
(vi) to
the
Class M1 Certificates, until the Class Principal Amount of such Class has been
reduced to zero;
(vii) sequentially,
first, to the Class A3 Certificates until their Class Principal Amount has
been
reduced to zero, second, to the Class A2 Certificates until their Class
Principal Amount has been reduced to zero, and third, to the Class A1
Certificates until their Class Principal Amount has been reduced to zero, in
that order.
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Section
5.04 Advances
by Master Servicer, Servicer and Trustee.
(a) Subject
to Section 9.07, Advances shall be made in respect of each Determination Date
as
provided herein. If, on any Determination Date, any Servicer determines that
any
Scheduled Payments due during the related Collection Period and relating to
any
of the Mortgage Loans that it services have not been received, such Servicer
shall advance such amount to the extent provided in the related Servicing
Agreement. If the applicable Servicer fails to remit Advances required to be
made under the related Servicing Agreement, the Master Servicer shall itself
make, or shall cause the successor Servicer to make, such Advance on the Deposit
Date immediately following such Determination Date; provided, however, that
required Advances remitted by the applicable Servicer or the Master Servicer
may
be reduced by an amount, if any, to be set forth in an Officer’s Certificate to
be delivered to the Trustee on such Determination Date, which if advanced the
Master Servicer or the applicable Servicer has determined would not be
recoverable from amounts received with respect to such Mortgage Loan, including
late payments, Liquidation Proceeds, Insurance Proceeds or otherwise. If the
Master Servicer determines that an Advance is required, it shall on the Deposit
Date immediately following such Determination Date either (i) remit to the
Trustee from its own funds (or funds advanced by the applicable Servicer) for
deposit in the Certificate Account immediately available funds in an amount
equal to such Advance, (ii) cause to be made an appropriate entry in the records
of the Collection Account that funds in such account being held for future
distribution or withdrawal have been, as permitted by this Section 5.04, used
by
the Master Servicer to make such Advance, and remit such immediately available
funds to the Trustee for deposit in the Certificate Account or (iii) make
Advances in the form of any combination of clauses (i) and (ii) aggregating
the
amount of such Advance. Any funds being held in the Collection Account for
future distribution to Certificateholders and so used shall be replaced by
the
Master Servicer from its own funds by remittance to the Trustee for deposit
in
the Certificate Account on or before any future Deposit Date to the extent
that
funds in the Certificate Account on such Deposit Date shall be less than
payments to Certificateholders required to be made on the related Distribution
Date. The Master Servicer and the Servicers shall be entitled to be reimbursed
from the Collection Account for all Advances made by it as provided in Section
4.02. Notwithstanding anything to the contrary herein, in the event the Master
Servicer determines in its reasonable judgment that an Advance is
non-recoverable, the Master Servicer shall be under no obligation to make such
Advance. The Trustee shall be entitled to conclusively rely upon any
determination by the Master Servicer that an Advance, if made, would constitute
a non-recoverable Advance.
(b) In
the
event that the Master Servicer or any Servicer fails for any reason to make
an
Advance required to be made pursuant to this Section 5.04 on or before the
Deposit Date, the Trustee, solely in its capacity as successor master servicer
pursuant to Section 6.14, shall, on or before the related Distribution Date,
deposit in the Certificate Account an amount equal to the excess of (a) Advances
required to be made by the Master Servicer or any Servicer that would have
been
deposited in such Certificate Account over (b) the amount of any Advance made
by
the Master Servicer or such Servicer with respect to such Distribution Date;
provided, however, that the Trustee shall be required to make such Advance
only
if it is not prohibited by law from doing so and it has determined that such
Advance would be recoverable from amounts to be
94
received
with respect to such Mortgage Loan, including
late payments, Liquidation Proceeds, Insurance Proceeds, or otherwise. The
Trustee shall be entitled to be reimbursed from the Certificate Account for
Advances made by it pursuant to this Section 5.04 as if it were the Master
Servicer.
Notwithstanding
anything in this Section 5.04 to the contrary, the Master Servicer’s obligation
to make Advances on the Mortgage Loans in the aggregate for a Deposit Date
shall
be reduced by any Capitalization Reimbursement Amounts during the related
Collection Period.
Section
5.05 Compensating
Interest Payments.
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicers. Any Compensating Interest Payments made
by
the Servicers shall be a component of the Interest Remittance
Amount.
Section
5.06 Basis
Risk Reserve Fund.
(a) On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the LIBOR Certificates and Subordinate Certificates, a Basis
Risk
Reserve Fund. The Basis Risk Reserve Fund shall be an Eligible Account, and
funds on deposit therein shall be held separate and apart from, and shall not
be
commingled with, any other moneys, including, without limitation, other moneys
of the Trustee held pursuant to this Agreement.
(b) [Reserved]
(c) Funds
in
the Basis Risk Reserve Fund shall be invested in Eligible Investments. The
Class
X Certificates shall evidence ownership of the Basis Risk Reserve Fund for
federal income tax purposes and LBH, on behalf of the Holders thereof, shall
direct the Trustee, in writing, as to investment of amounts on deposit therein.
LBH shall be liable for any losses incurred on such investments. In the absence
of written instructions from LBH as to the investment of funds on deposit in
the
Basis Risk Reserve Fund, such funds shall remain uninvested.
Section
5.07 Class
AP Reserve Funds.
(a) The
Trustee shall establish and maintain a segregated trust account that is an
Eligible Account, which shall be titled “Class AP Reserve Fund, U.S. Bank
National Association, as trustee, in trust for the registered holders of Xxxxxx
XS Trust Mortgage Pass-Through Certificates, Series 2007-20N” (the “Class AP
Reserve Fund”). The Trustee shall credit the Class AP Reserve Fund with $1,000
remitted for such purpose on the Closing Date to the Trustee by LBH. Funds
deposited in the Class AP Reserve Fund shall be held in trust by the Trustee
on
behalf of the Certificateholders until distributed pursuant to Section 5.07(c).
(b) Funds
in
the Class AP Reserve Fund shall remain uninvested.
(c) On
the
Distribution Date in December 2010, the Trustee shall distribute $1,000 from
the
Class AP Reserve Fund to the Holders of the Class AP Certificates.
95
(d) None
of
the assets of the Class P Reserve Funds shall be an asset of any of the
REMICs.
Section
5.08 Supplemental
Interest Trust.
(a) A
separate trust is hereby established (the “Supplemental Interest Trust”), the
corpus of which shall be held by the Trustee, in trust, for the benefit of
the
holders of the Certificates and the Swap Counterparty. The Trustee, as trustee
of the Supplemental Interest Trust, shall establish an account (the
“Supplemental Interest Trust Account”). The Supplemental Interest Trust Account
shall be an Eligible Account, and funds on deposit therein shall be held
separate and apart from, and shall not be commingled with, any other moneys,
including, without limitation, other moneys of the Trustee held pursuant to
this
Agreement.
(b) The
Trustee shall deposit into the Supplemental Interest Trust Account any Net
Swap
Payment required pursuant to Sections 5.02(b) and 5.02(c), any Swap Termination
Payment required pursuant to Sections 5.02(b) and 5.02(c), any amounts received
from the Swap Counterparty under the Swap Agreement and any amounts required
pursuant to Section 5.02(d)(vi), and shall distribute from the Supplemental
Interest Trust Account any Net Swap Payment required pursuant to Section
5.02(e)(i) or Swap Termination Payment required pursuant to Sections 5.02(e)(ii)
and 5.02(e)(viii).
(c) Funds
in
the Supplemental Interest Trust Account shall be invested in Eligible
Investments. Any earnings on such amounts shall be distributed on each
Distribution Date pursuant to Section 5.02(e). The S-X Component of the Class
X
Certificates shall evidence ownership of the Supplemental Interest Trust Account
for federal income tax purposes and the Holder thereof shall direct the Trustee,
in writing, as to investment of amounts on deposit therein. The Class X
Certificateholders shall be liable for any losses incurred on such investments.
In the absence of written instructions from the Class X Certificateholders
as to
investment of funds on deposit in the Supplemental Interest Trust Account,
such
funds shall be invested in the First American Government Obligations Fund or
comparable investment vehicle. Any amounts on deposit in the Supplemental
Interest Trust Account in excess of the Supplemental Interest Trust Amount
on
any Distribution Date shall be held for distribution pursuant to Section 5.02(e)
on the following Distribution Date.
(d) Upon
termination of the Trust Fund, any amounts remaining in the Supplemental
Interest Trust Account shall be distributed pursuant to the priorities set
forth
in Section 5.02(e).
(e) [Reserved].
(f) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Trustee, any obligation of the Trustee under the Swap Agreement
shall be deemed to be an obligation of the Supplemental Interest
Trust.
Section
5.09 Rights
of Swap Counterparty.
The
Swap
Counterparty shall be deemed a third-party beneficiary of this Agreement to
the
same extent as if it were a party hereto and shall have the right, upon
designation of an “Early Termination Date” (as defined in the Swap Agreement),
to enforce its rights under this
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Agreement,
which rights include but are not limited to
the obligation of the Trustee (A) to deposit any Net Swap Payment required
pursuant to Sections 5.02(b) and 5.02(c), and any Swap Termination Payment
required pursuant to Sections 5.02(b) and 5.02(c), into the Supplemental
Interest Trust Account, (B) to deposit any amounts required pursuant to Section
5.08(b) into the Supplemental Interest Trust Account, (C) to pay any Net Swap
Payment required pursuant to Section 5.02(e)(i) or Swap Termination Payment
required pursuant to Sections 5.02(e)(ii) and (viii) to the Swap Counterparty
and (D) to establish and maintain the Supplemental Interest Trust Account,
to
make such deposits thereto, investments therein and distributions therefrom
as
are required pursuant to Section 5.08. For the protection and enforcement of
the
provisions of this Section the Swap Counterparty shall be entitled to such
relief as can be given either at law or in equity.
Section
5.10 Termination
Receipts.
In
the
event of an “Early Termination Event” as defined under the Swap Agreement, (i)
any Swap Termination Payment made by the Swap Counterparty to the Supplemental
Interest Trust and paid pursuant to Section 5.02(e)(vii) (“Termination
Receipts”) will be deposited in a segregated non-interest bearing account which
shall be an Eligible Account established by the Trustee (the “Termination
Receipts Account”) and (ii) any amounts received from a replacement Swap
Counterparty (“Replacement Receipts”) will be deposited in a segregated
non-interest bearing account which shall be an Eligible Account established
by
the Trustee (the “Replacement Receipts Account”). The Trustee shall invest, or
cause to be invested, funds held in the Termination Receipts Account and the
Replacement Receipts Account in time deposits of the Trustee as permitted by
clause (ii) of the definition of Eligible Investments or as otherwise directed
in writing by a majority of the Certificateholders. All such investments must
be
payable on demand or mature on a Swap Payment Date or such other date as
directed by the Certificateholders. All such Eligible Investments will be made
in the name of the Trustee of the Supplemental Interest Trust (in its capacity
as such) or its nominee. All income and gain realized from any such investment
shall be deposited in the Termination Receipts Account or the Replacement
Receipts Account, as applicable, and all losses, if any, shall be borne by
the
related account.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Swap Agreement(s)
and
the Trustee shall promptly, with the assistance and cooperation of the
Depositor, use amounts on deposit in the Termination Receipts Account, if
necessary, to enter into replacement Swap Agreement(s) which shall be executed
and delivered by the Trustee on behalf of the Supplemental Interest Trust upon
receipt of written confirmation from each Rating Agency that such replacement
Swap Agreement(s) will not result in the reduction or withdrawal of the rating
of any outstanding Class of Certificates with respect to which it is a Rating
Agency.
Amounts
on deposit in the Replacement Receipts Account shall be held for the benefit
of
the related Swap Counterparty and paid to such Swap Counterparty if the
Supplemental Interest Trust is required to make a payment to such Swap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so applied shall, following the termination or expiration of such Swap
Agreement, be paid to the S-X Component of the Class X Certificates. Neither
the
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Termination
Receipts Account nor the Replacement
Receipts Account shall be the asset of any REMIC.
Section
5.11 Collateral
Account.
In
the
event that the Swap Counterparty is required to post collateral pursuant to
a
downgrade event under the Swap Agreement, the Trustee, on behalf of the Trust
Fund, is hereby authorized to establish on the Closing Date, a Collateral
Account for the deposit of such monies. Funds in the Collateral Account shall
not be commingled with any other monies and shall not be invested. Funds in
the
Collateral Account will be administered pursuant to the Credit Support Annex
of
the Swap Agreement. The Collateral Account shall not be an asset of any REMIC.
On the first Distribution Date immediately following any Swap Payment Date
as to
which a shortfall exists with respect to a Net Swap Payment or a Swap
Termination Payment owed by the Swap Counterparty as a result of its failure
to
make payments pursuant to the Swap Agreement, amounts necessary to cover such
shortfall shall be removed from the Collateral Account and distributed as all
or
a portion of such Net Swap Payment or Swap Termination Payment pursuant to
Section 5.02.
Section
5.12 Reserved.
Section
5.13 X
Component Account.
(a) On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the holders of the Class X Certificates, the X Component Account.
No later than the first date on which any NIM Securities are issued, the
Depositor may deposit a dollar amount into the X Component Account. The X
Component Account shall be an Eligible Account, and funds on deposit therein
shall be held separate and apart from, and shall not be commingled with, any
other moneys, including, without limitation, other moneys of the Trustee held
pursuant to this Agreement.
(b) Funds
in
the X Component Account may be invested in Eligible Investments having fixed
maturities described in clauses (i), (iv), (v) or (vii) of the definition
thereof by the Trustee at the direction of the holders of the Class C
Certificates maturing on or prior to the next succeeding Distribution Date.
No
Eligible Investments shall be acquired or disposed of for the primary purpose
of
recognizing gains or decreasing losses from market value changes. Any funds
held
in the X Component Account that are not invested shall be held in cash. In
the
absence of such written direction, all funds in the X Component Account shall
remain uninvested. Any investment earnings on such amounts in the X Component
Account shall be payable to the holders of the Class C Certificates. The Trustee
shall account for the X Component Account as an outside reserve fund within
the
meaning of Treasury regulation 1.860G-2(h) and not an asset of any REMIC created
pursuant to this Agreement. The Class C Certificates shall evidence ownership
of
the X Component Account for federal tax purposes and the Holders thereof shall
direct the Trustee in writing as to the investment of amounts therein. The
Trustee shall have no liability for losses on investments in Eligible
Investments made pursuant to this Section 5.13(b) (other than as obligor on
any
such investments). Upon termination of the X Component Account, any amounts
remaining in the X Component Account
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shall
be distributed to the Holders of the Class C
Certificates in the same manner as if distributed pursuant to Section 5.02(f)(1)
hereof.
(c) On
each
Distribution Date on or prior to the Class X Termination Date, amounts on
deposit in the X Component Account will be withdrawn and applied to make
payments on the Class X and Class C Certificates, as provided in Section 5.02(f)
of this Agreement. Any amounts that the Trustee is not required to distribute
from the X Component Account pursuant to Section 5.02(f) of this Agreement
shall
remain on deposit in the X Component Account.
(d) The
X
Component Account shall terminate on the earlier of (i) the X Component Account
Termination Date or (ii) the Distribution Date on which the amount on deposit
in
the X Component Account is reduced to zero.
ARTICLE
VI.
CONCERNING
THE TRUSTEE; EVENTS OF DEFAULT
Section
6.01 Duties
of Trustee.
(a) The
Trustee, except during the continuance of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge, undertakes
to
perform such duties and only such duties as are specifically set forth in this
Agreement. Any permissive right of the Trustee provided for in this Agreement
shall not be construed as a duty of the Trustee. If an Event of Default (of
which a Responsible Officer of the Trustee shall have actual knowledge) has
occurred and has not otherwise been cured or waived, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement and use the same
degree of care and skill in their exercise as a prudent Person would exercise
or
use under the circumstances in the conduct of such Person’s own affairs, unless
the Trustee is acting as Master Servicer, in which case it shall use the same
degree of care and skill as the Master Servicer hereunder.
(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 Master Servicer, the Cap Provider, the Swap Counterparty or
any
Servicer to the Trustee pursuant to this Agreement, and shall not be required
to
recalculate or verify 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 any NIMS Insurer 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
and any NIMS Insurer.
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(c) The
Trustee shall not have any liability arising out of or in connection with this
Agreement, except for its negligence or willful misconduct. Notwithstanding
anything in this Agreement to the contrary, the Trustee shall not be liable
for
special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits). No provision of this Agreement
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
consent or direction of the Holders of Certificates as provided in Section
6.18
hereof;
(ii) For
all
purposes under this Agreement, the Trustee shall not be deemed to have notice
of
any Event of Default (other than resulting from a failure by the Master Servicer
to remit funds or to furnish information to the Trustee when required to do
so)
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the address provided in Section 11.07, and such notice
references the Holders of the Certificates and this Agreement;
(iii) The
Trustee shall not be responsible for the acts or omissions of any Servicer,
Custodian or the Master Servicer, it being understood that this Agreement shall
not be construed to render any of them agents of one another; and
(iv) The
Trustee shall not be responsible for the acts or omissions of the Master
Servicer.
(d) The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided, however, that the Trustee
shall promptly remit to the Master Servicer upon receipt any such complaint,
claim, demand, notice or other document (i) which is delivered to the Corporate
Trust Office of the Trustee and makes reference to this series of Certificate
or
this Agreement, (ii) of which a Responsible Officer has actual knowledge, and
(iii) which contains information sufficient to permit the Trustee to make a
determination that the real property to which such document relates is a
Mortgaged Property.
(e) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of any NIMS Insurer or 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.
(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
100
adequate
indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Master Servicer or
any
Servicer under this Agreement or any Servicing Agreement except during such
time, if any, as the Trustee shall be the successor to, and be vested with
the
rights, duties, powers and privileges of, the Master Servicer in accordance
with
the terms of this Agreement, except with respect to the Trustee, during such
time, if any, as the Trustee shall be the successor to, and be vested with
the
rights, duties, powers and privileges of, the Master Servicer in accordance
with
the terms of this Agreement.
(g) The
Trustee shall not be held liable by reason of any insufficiency in any account
(including without limitation the Collection Account and the Certificate
Account) held by or on behalf of the Trustee resulting from any investment
loss
on any Eligible Investment included therein (except to the extent that the
Trustee is the obligor and has defaulted thereon).
(h) Except
as
otherwise provided herein, the Trustee shall not have any duty (A) to see to
any
recording, filing, or depositing of this Agreement or any agreement referred
to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing of any thereof,
(B) to see to any insurance, (C) to see to the payment or discharge of any
tax,
assessment, or other governmental charge or any lien or encumbrance of any
kind
owing with respect to, assessed or levied against, any part of the Trust Fund
other than from funds available in the Collection Account or the Certificate
Account, or (D) to confirm or verify the contents of any reports or certificates
of the Master Servicer, any Servicer, the Swap Counterparty, the Cap Provider
or
the Depositor delivered to the Trustee pursuant to this Agreement believed
by
the Trustee to be genuine and to have been signed or presented by the proper
party or parties.
(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, the Trustee shall not be liable
for
special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits), even if the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form
of
action.
(k) This
Agreement shall not be construed to render the Trustee an agent of the Master
Servicer or the Servicer.
(l) For
so
long as the Depositor is subject to Exchange Act reporting requirements for
the
Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-20N transaction,
the Trustee shall give prior written notice to the Sponsor, the Master Servicer
and the Depositor of the appointment of any Subcontractor by it and a written
description (in form and substance satisfactory to the Sponsor and the
Depositor) of the role and function of each Subcontractor utilized by the
Trustee, specifying (A) the identity of each such Subcontractor and (B)
which
101
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.
(m) The
Trustee shall notify the Sponsor, the Master Servicer and the Depositor within
five (5) calendar days of knowledge thereof (i) of any legal proceedings pending
against the Trustee, of the type described in Item 1117 (§ 229.1117) of
Regulation AB, (ii) of any merger, consolidation or sale of substantially all
of
the assets of the Trustee and (iii) if the Trustee shall become (but only to
the
extent not previously disclosed) at any time an affiliate of any of the parties
listed on Exhibit S hereto or any of their affiliates. On or before March 1st
of
each year, the Depositor shall distribute the information in Exhibit S to the
Trustee.
Section
6.02 Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 6.01:
(i) The
Trustee may request, and may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer’s Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) The
Trustee may consult with counsel and any advice of its counsel or Opinion of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) The
Trustee shall not be personally liable for any action taken, suffered or omitted
by it in good faith and reasonably believed by it to be authorized or within
the
discretion or rights or powers conferred upon it by this Agreement;
(iv) Unless
an
Event of Default shall have occurred and be continuing, the Trustee shall not
be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document (provided
the
same appears regular on its face), unless requested in writing to do so by
any
NIMS Insurer or 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 any NIMS Insurer or the Certificateholders, as
applicable, 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;
(v) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians or attorneys,
which agents, custodians or attorneys shall have any and all of the rights,
powers, duties and obligations
102
of
the Trustee conferred on them by such appointment,
provided that the Trustee shall continue to be responsible for its duties and
obligations hereunder to the extent provided herein, and provided further that
the Trustee shall not be responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due care by the
Trustee;
(vi) The
Trustee shall not be under any obligation to exercise any of the trusts or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto, in each case at the request, order
or direction of any of the Certificateholders or any NIMS Insurer pursuant
to
the provisions of this Agreement, unless such Certificateholders or any NIMS
Insurer shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby;
(vii) The
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of such
act;
and
(viii) The
Trustee shall not be required to give any bond or surety in respect of the
execution of the Trust Fund created hereby or the powers granted
hereunder.
Section
6.03 Trustee
Not Liable for Certificates.
The
Trustee makes no representations as to the validity or sufficiency of this
Agreement, the Swap Agreement, the Interest Rate Cap Agreement or of the
Certificates (other than the certificate of authentication on the Certificates)
or of any Mortgage Loan, or related document save that the Trustee represents
that, assuming due execution and delivery by the other parties hereto, this
Agreement has been duly authorized, executed and delivered by it and constitutes
its valid and binding obligation, enforceable against it in accordance with
its
terms except that such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally, and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in equity
or at law. The Trustee shall not be accountable for the use or application
by
the Depositor of funds paid to the Depositor in consideration of the assignment
of the Mortgage Loans to the Trust Fund by the Depositor or for the use or
application of any funds deposited into the Collection Account, the Certificate
Account, any Escrow Account or any other fund or account maintained with respect
to the Certificates. The Trustee shall not be responsible for the legality
or
validity of this Agreement, the Swap Agreement, the Interest Rate Cap 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.
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
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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 Master Servicer or any Servicer. If such corporation or
national banking association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation or national banking association shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In case at any time 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, any NIMS Insurer, the Swap
Counterparty, each Rating Agency and the Master Servicer. Upon receiving such
notice of resignation, the Depositor will promptly appoint a successor trustee
acceptable to any NIMS Insurer by written instrument, one copy of which
instrument shall be delivered to the resigning Trustee, one copy to the
successor trustee and one copy to each of the Master Servicer, the Swap
Counterparty and any NIMS Insurer. 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 or any NIMS Insurer, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or 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) a tax is
imposed or threatened with respect to the Trust Fund by any state in which
the
Trustee or the Trust Fund held by the Trustee is located, (iv) the continued
use
of the Trustee would result in a downgrading of the rating by any Rating Agency
of any Class of Certificates with a rating, or (v) the Trustee shall fail to
provide the information required pursuant to Section 6.01(l) or (m) or Section
9.25 hereof, then the Depositor, any NIMS Insurer or the Master Servicer shall
remove the Trustee and the Depositor shall appoint a successor trustee
acceptable to any NIMS Insurer and the Master Servicer by written instrument,
one copy of which instrument shall be delivered to each of the Trustee so
removed, the successor trustee, the Master Servicer, the Swap Counterparty
and
any NIMS Insurer.
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(c) The
Holders of more than 50% of the Class Principal Amount (or Percentage Interest)
of each Class of Certificates (or any NIMS Insurer in the event of failure
of
the Trustee to perform its obligations hereunder) may at any time upon 30 days’
written notice to the Trustee and the Depositor remove the Trustee by such
written instrument, signed by such Holders or their attorney in fact duly
authorized (or by any NIMS Insurer), one copy of which instrument shall be
delivered to each of the Depositor, the Trustee, the Master Servicer, the Swap
Counterparty and any NIMS Insurer; and the Depositor shall thereupon appoint
a
successor trustee in accordance with this Section mutually acceptable to the
Depositor, the Master Servicer and any NIMS Insurer.
(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
(i) the payment of all unpaid amounts owed to the Trustee and (ii) the
acceptance of appointment by the successor trustee as provided in Section
6.07.
Section
6.07 Successor
Trustee.
(a) Any
successor trustee appointed as provided in Section 6.06 shall execute,
acknowledge and deliver to the Depositor, the Master Servicer, the Swap
Counterparty and any NIMS Insurer 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. The predecessor trustee
(or its custodian) shall deliver to the successor trustee (or assign to the
Trustee its interest under each Custodial Agreement, to the extent permitted
thereunder) all Mortgage Files and documents and statements related to each
Mortgage File held by it hereunder, and shall duly assign, transfer, deliver
and
pay over to the successor trustee the entire Trust Fund, together with all
necessary instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer and such of the 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. In addition, the Master
Servicer and the predecessor trustee shall execute and deliver such other
instruments and do such other things as may reasonably be required to more
fully
and certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations.
(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
hereunder 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.
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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. As a condition to the 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 Depositor and the Master Servicer, 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 Depositor in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably necessary for the Trustee to accurately and timely report, pursuant
to Section 6.20, 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).
Section
6.09 Appointment
of Co-Trustee, Separate Trustee or Custodian.
(a) Notwithstanding
any other provisions hereof, at any time, the Trustee, the Depositor or the
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Percentage Interest) of every Class of Certificates shall have the power from
time to time to appoint one or more Persons, approved by the Trustee and any
NIMS Insurer, to act either as co-trustees jointly with the Trustee, or as
separate trustees, or as custodians, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any Mortgage Loan outside
the state where the Trustee has its principal place of business where such
separate trustee or co-trustee is necessary or advisable (or the Trustee has
been advised by the Master Servicer that such separate trustee or co-trustee
is
necessary or advisable) under the laws of any state in which a property securing
a Mortgage Loan is located or for the purpose of otherwise conforming to any
legal requirement, restriction or condition in any state in which a property
securing a Mortgage Loan is located or in any state in which any portion of
the
Trust Fund is located. The separate Trustees, co-trustees, or custodians so
appointed shall be trustees or custodians for the benefit of all the
Certificateholders and shall have such powers, rights and remedies as shall
be
specified in the instrument of appointment; provided, however, that no such
appointment shall, or shall be deemed to, constitute the appointee an agent
of
the Trustee. The obligation of the Trustee to make Advances pursuant to Section
5.04 and 6.14 shall not be affected or assigned by the appointment of a
co-trustee. Prior to the appointment hereunder of any co-trustee, separate
trustee, or custodian pursuant to this Section 6.09, such Person shall enter
into an agreement, in form and substance satisfactory to the Depositor, the
Master Servicer and the Trustee, relating to the satisfaction of such Person
of
its reporting obligations under Regulation AB with respect to the Trust Fund.
The Trustee shall not be responsible for any action or omission of any separate
trustee, co-trustee or custodian. Notwithstanding the foregoing, if such
co-custodian or co-trustee is determined to be a Servicing Function Participant,
no such co-custodian or co-trustee shall be vested with any powers, rights
and
remedies under this Agreement unless such party has agreed to comply with all
Regulation AB requirements set forth under this Agreement or each Custodial
Agreement, as applicable.
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(b) Every
separate trustee, co-trustee, and custodian shall, to the extent permitted
by
law, be appointed and act subject to the following provisions and
conditions:
(i) all
powers, duties, obligations and rights conferred upon the Trustee in respect
of
the receipt, custody and payment of moneys shall be exercised solely by the
Trustee;
(ii) all
other
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee, co-trustee, or custodian jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed the Trustee shall be incompetent or unqualified to perform
such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust Fund or any portion thereof in
any
such jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no
trustee or custodian hereunder shall be personally liable by reason of any
act
or omission of any other trustee or custodian hereunder; and
(iv) the
Trustee or the Certificateholders evidencing more than 50% of the Aggregate
Voting Interests of the Certificates may at any time accept the resignation
of
or remove any separate trustee, co-trustee or custodian, so appointed by it
or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee,
co-trustee or custodian shall refer to this Agreement and the conditions of
this
Article VI. Each separate trustee and co-trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in
its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy given to the Master
Servicer and any NIMS Insurer.
(d) Any
separate trustee, co-trustee or custodian may, at any time, constitute the
Trustee its agent or attorney in fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee, co-trustee
or
custodian shall die, become incapable of acting, resign or be removed, all
of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) No
separate trustee, co-trustee or custodian hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.05 hereunder
and
no notice to Certificateholders of the appointment shall be required under
Section 6.07 hereof.
(f) The
Trustee agrees to instruct the co-trustees, if any, to the extent necessary
to
fulfill the Trustee’s obligations hereunder.
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(g) The
Trustee shall pay the reasonable compensation of the co-trustees requested
by
the Trustee to be so appointed (which compensation shall not reduce any
compensation payable to the Trustee) and, if paid by the Trustee, shall be
a
reimbursable expense pursuant to Section 6.12.
(h) Notwithstanding
the foregoing, for so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Trustee shall
not utilize any Subcontractor for the performance of its duties hereunder if
such Subcontractor would be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB without (a) giving notice to the Seller,
the Master Servicer and the Depositor and (b) requiring any such Subcontractor
to provide to the Trustee an assessment of compliance as provided in Section
9.25(a) and an attestation report as provided in Section 9.25(b), which reports
the Trustee shall include in its assessment and attestation reports. The Trustee
shall indemnify the Depositor and the Master Servicer and any director, officer,
employee or agent of each of the Depositor and the Master Servicer and hold
them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain arising
out
of or based upon (i) the failure by the Trustee to give notice of the engagement
of any Subcontractor or (ii) the failure by such Subcontractor engaged by the
Trustee to provide the Trustee or the Master Servicer and the Depositor, either
directly or indirectly through the Trustee, an assessment of compliance as
provided in Section 9.25(a) and an attestation report as provided in Section
9.25(b). This indemnity shall survive the termination of this Agreement or
the
earlier resignation or removal of the Trustee.
Section
6.10 Authenticating
Agents.
(a) The
Trustee may appoint one or more Authenticating Agents which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. Wherever
reference is made in this Agreement to the authentication of Certificates by
the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by
an Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America
or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or
examination by federal or state authorities and acceptable to any NIMS
Insurer.
(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, any NIMS Insurer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written
108
notice
of termination to such Authenticating Agent, any
NIMS Insurer and the Depositor. Upon receiving a notice of resignation or upon
such a termination, or in case at any time any Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section 6.10, the
Trustee may appoint a successor Authenticating Agent, shall give written notice
of such appointment to the Depositor and any NIMS Insurer and shall mail notice
of such appointment to all Holders of Certificates. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all
the rights, powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions
of
this Section 6.10. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
Any Authenticating Agent shall be entitled to reasonable compensation for its
services and, if paid by the Trustee, it shall be a reimbursable expense
pursuant to Section 6.12.
Section
6.11 Indemnification
of Trustee.
The
Trustee and its respective directors, officers, employees and agents shall
be
entitled to indemnification from the Trust Fund for any loss, liability or
expense incurred in connection with any legal proceeding or incurred without
negligence or willful misconduct on their part (it being understood that the
negligence or willful misconduct of any Custodian shall not constitute
negligence or willful misconduct on the part of the Trustee or its directors,
officers, employees or agents for such purpose), arising out of, or in
connection with, the acceptance or administration of the trusts created
hereunder or under the Exchange Trust Agreement or in connection with the
performance of their duties hereunder, the Mortgage Loan Sale Agreement, the
Interest Rate Cap Agreement, the Swap Agreement, any Transfer Agreement, any
Servicing Agreement or any Custodial Agreement, including any applicable fees
and expenses payable pursuant to Section 6.12 and the costs and expenses of
defending themselves against any claim in connection with the exercise or
performance of any of their powers or duties hereunder, provided
that:
(i) with
respect to any such claim, the Trustee shall have given the Depositor, the
Master Servicer and the Holders written notice thereof promptly after the
Trustee shall have knowledge thereof; provided that failure to so notify shall
not relieve the Trust Fund of the obligation to indemnify the Trustee; however,
any reasonable delay by the Trustee to provide written notice to the Depositor,
the Master Servicer and the Holders promptly after the Trustee shall have
obtained knowledge of a claim shall not relieve the Trust Fund of the obligation
to indemnify the Trustee under this Section 6.11;
(ii) while
maintaining control over its own defense, the Trustee shall cooperate and
consult fully with the Depositor in preparing such defense; and
(iii) notwithstanding
anything to the contrary in this Section 6.11, the Trust Fund shall not be
liable for settlement of any such claim by the Trustee entered into without
the
prior consent of the Depositor, which consent shall not be unreasonably
withheld.
The
provisions of this Section 6.11 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
109
Section
6.12 Fees
and Expenses of Trustee and Custodians.
The
Trustee shall be entitled to (i) receive, and is authorized to pay itself,
the
amount of income or gain earned from investment of funds in the Certificate
Account and (ii) reimbursement of all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with this Agreement
(including fees and expenses of its counsel and all persons not regularly in
its
employment and any amounts described in Section 10.01 to which the Trustee
is
entitled as provided therein), except for expenses, disbursements and advances
that either (i) do not constitute “unanticipated expenses” within the meaning of
Treasury Regulations Section 1.860G-1(b)(3)(ii) or (ii) arise from its
negligence, bad faith or willful misconduct. The Custodian shall receive
compensation and reimbursement or payment of its expenses under the Custodial
Agreement as provided therein; provided that, to the extent required under
Section 6 or Section 20 of the Custodial Agreement, the Trustee is hereby
authorized to pay such compensation or reimbursement from amounts on deposit
in
the Certificate Account prior to any distributions to Certificateholders
pursuant to Section 5.02 hereof.
Section
6.13 Collection
of Monies.
Except
as
otherwise expressly provided in this Agreement, the Trustee may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee pursuant to this Agreement. The Trustee
shall hold all such money and property received by it as part of the Trust
Fund
and shall distribute it as provided in this Agreement. If the Trustee shall
not
have timely received amounts to be remitted with respect to the Mortgage Loans
from the Master Servicer, the Trustee shall request the Master Servicer to
make
such distribution as promptly as practicable or legally permitted. If the
Trustee shall subsequently receive any such amount, it may withdraw such
request.
Section
6.14 Events
of Default; Trustee To Act; Appointment of Successor.
(a) The
occurrence of any one or more of the following events shall constitute an “Event
of Default”:
(i) Any
failure by the Master Servicer to furnish to the Trustee the Mortgage Loan
data
sufficient to prepare the reports described in Section 4.03(a) which continues
unremedied for a period of two (2) Business Days after the date upon which
written notice of such failure shall have been given to such Master Servicer
by
the Trustee or to such Master Servicer and the Trustee by any NIMS Insurer
or
Holders of not less than 25% of the Class Principal Amount of each Class of
Certificates affected thereby; or
(ii) Any
failure on the part of the Master Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement which continues unremedied for
a
period of 30 days (or 15 days, in the case of failure to maintain any Insurance
Policy required to be maintained pursuant to this Agreement) after the date
on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by the Trustee or to the Master Servicer
and the Trustee by any NIMS Insurer or Holders of not less than 25% of the
Class
Principal Amount (or Class Notional Amount or Percentage Interest) of each
Class
of Certificates affected thereby; or
110
(iii) A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding up or liquidation of its affairs, shall have
been entered against the Master Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days or any Rating
Agency reduces or withdraws or threatens to reduce or withdraw the rating of
the
Certificates because of the financial condition or loan servicing capability
of
such Master Servicer; or
(iv) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, voluntary liquidation or similar proceedings of or relating to
the
Master Servicer or of or relating to all or substantially all of its property;
or
(v) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its
creditors or voluntarily suspend payment of its obligations; or
(vi) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer as specified in Section
9.27
hereof; or
(vii) If
a
representation or warranty set forth in Section 9.14 hereof shall prove to
be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Certificateholders, and the circumstance or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 30 days after the date on which
written notice of such incorrect representation or warranty shall have been
given to the Master Servicer by the Trustee or to the Master Servicer and the
Trustee by the Holders of not less than 50% of the Aggregate Voting Interests
of
the Certificates or by any NIMS Insurer; or
(viii) A
sale or
pledge of any of the rights of the Master Servicer hereunder or an assignment
of
this Agreement by the Master Servicer or a delegation of the rights or duties
of
the Master Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the Trustee, any
NIMS Insurer and Certificateholders holding not less than 50% of the Aggregate
Voting Interests of the Certificates; or
(ix) The
Master Servicer has notice or actual knowledge that a Servicer at any time
is
not either a Xxxxxx Xxx- or Xxxxxxx Mac- approved Seller/Servicer, and the
Master Servicer has not terminated the rights and obligations of such Servicer
under the Servicing Agreement and replaced such Servicer with a Xxxxxx Mae-
or
Xxxxxxx Mac-approved servicer
111
within
60 days of the date the Master Servicer receives
such notice or acquires such actual knowledge; or
(x) After
any
receipt of notice from the Trustee or any NIMS Insurer, any failure of the
Master Servicer to remit to the Trustee any payment required to be made to
the
Trustee for the benefit of Certificateholders under the terms of this Agreement,
including any Advance, on any Deposit Date, which failure continues unremedied
for a period of one Business Day after the date upon which such written notice
of such failure shall have been given to the Master Servicer by the
Trustee.
If
an
Event of Default described in clauses (i) through (ix) of this Section 6.14
shall occur, then, in each and every case, subject to applicable law, so long
as
any such Event of Default shall not have been remedied within any period of
time
prescribed by this Section, the Trustee, by notice in writing to the Master
Servicer may, and shall, if so directed by Certificateholders evidencing not
less than 25% of the Class Principal Amount (or Class Notional Amount or
Percentage Interest) of each Class of Certificates affected thereby or any
NIMS
Insurer, terminate all of the rights and obligations of the Master Servicer
hereunder and in and to the Mortgage Loans and the proceeds thereof. If an
Event
of Default described in clause (x) of this Section 6.14 shall occur, then,
in
each and every case, subject to applicable law, so long as such Event of Default
shall not have been remedied within the time period prescribed by clause (x)
of
this Section 6.14, the Trustee, by notice in writing to the Master Servicer
and
the NIMS Insurer, shall promptly terminate all the rights and obligations of
the
Master Servicer hereunder and in and to the Mortgage Loans and the proceeds
thereof. On or after the receipt by the Master Servicer of such written notice,
all authority and power of the Master Servicer, and only in its capacity as
Master Servicer under this Agreement, whether with respect to the Mortgage
Loans
or otherwise, shall pass to and be vested in the Trustee and pursuant to and
under the terms of this Agreement; provided, however, the parties acknowledge
that notwithstanding the preceding sentence, there may be a transition period,
not to exceed 90 days, in order to effect the transfer of the Master Servicer’s
obligations to the Trustee, the Trustee is hereby authorized and empowered
to
execute and deliver, on behalf of the defaulting Master Servicer as
attorney-in-fact or otherwise, any and all documents and other instruments,
and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement or assignment of the Mortgage Loans and related documents or
otherwise. The defaulting Master Servicer agrees to cooperate with the Trustee
in effecting the termination of the defaulting Master Servicer’s
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying the Servicers of the assignment of the master servicing
function and providing the Trustee or its designee all documents and records
in
electronic or other form reasonably requested by it to enable the Trustee or
its
designee to assume the defaulting Master Servicer’s functions hereunder and the
transfer to the Trustee for administration by it of all amounts which shall
at
the time be or should have been deposited by the defaulting Master Servicer
in
the Collection Account maintained by such defaulting Master Servicer and any
other account or fund maintained with respect to the Certificates or thereafter
received with respect to the Mortgage Loans. The Master Servicer being
terminated (or the Trust Fund, if the Master Servicer is unable to fulfill
its
obligations hereunder) as a result of an Event of Default shall bear all costs
of a master servicing transfer, including but not limited to those of the
Trustee reasonably allocable to specific
112
employees
and overhead, legal fees and expenses,
accounting and financial consulting fees and expenses, and costs of amending
the
Agreement, if necessary.
The
Trustee shall be entitled to be reimbursed from the Master Servicer (or by
the
Trust Fund, if the Master Servicer is unable to fulfill its obligations
hereunder) for all costs associated with the transfer of master servicing from
the predecessor Master Servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all master servicing data
and
the completion, correction or manipulation of such servicing data as may be
required by the Trustee to correct any errors or insufficiencies in the master
servicing data or otherwise to enable the Trustee to master service the Mortgage
Loans properly and effectively. If the terminated Master Servicer does not
pay
such reimbursement within thirty (30) days of its receipt of an invoice
therefor, such reimbursement shall be an expense of the Trust Fund and the
Trustee shall be entitled to withdraw such reimbursement from amounts on deposit
in the Certificate Account pursuant to Section 4.04(b); provided that the
terminated Master Servicer shall reimburse the Trust Fund for any such expense
incurred by the Trust Fund.
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 4.02(a)(i), (ii), (iii), (v), (vii), (ix) and (x) to the extent
such
reimbursement relates to the period prior to such Master Servicer’s
termination.
If
any
Event of Default shall occur of which a Responsible Officer of the Trustee
has
actual knowledge, the Trustee, shall promptly notify any NIMS Insurer, the
Swap
Counterparty and each Rating Agency of the nature and extent of such Event
of
Default. The Trustee shall immediately give written notice to the Master
Servicer upon the Master Servicer’s failure to remit funds on the Deposit
Date.
(b) On
or
after the time the Master Servicer (and the Trustee, if notice is sent by any
NIMS Insurer) receives a notice of termination from the Trustee pursuant to
Section 6.14(a) or the Trustee receives the resignation of the Master Servicer
evidenced by an Opinion of Counsel pursuant to Section 9.28, the Trustee, within
90 days of such notice unless another master servicer acceptable to the NIMS
Insurer shall have been appointed, shall be the successor in all respects to
the
Master Servicer in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all the rights
and
powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer hereunder,
including the obligation to make Advances; provided, however, that any failure
to perform such duties or responsibilities caused by the Master Servicer’s
failure to provide information required by this Agreement shall not be
considered a default by the Trustee hereunder. In addition, the Trustee shall
have no responsibility for any act or omission of the Master Servicer prior
to
the issuance of any notice of termination. The Trustee shall have no liability
relating to the representations and warranties of the Master Servicer set forth
in Section 9.14. In the Trustee’s capacity as such successor, the Trustee shall
have the same limitations on liability herein granted to the Master Servicer.
As
compensation therefor, the Trustee shall be entitled to receive all compensation
payable to the Master Servicer under this Agreement, including the Master
Servicing Fee. The Trustee shall be entitled to be reimbursed from the Master
Servicer (or by the Trust Fund if the Master Servicer is unable to fulfill
its
obligations hereunder) for all costs associated with the transfer of master
servicing from the predecessor
113
master
servicer, including, without limitation, any
costs or expenses associated with the complete transfer of all master servicing
data and the completion, correction or manipulation of such master servicing
data as may be required by the Trustee to correct any errors or insufficiencies
in the master servicing data or otherwise to enable the Trustee to master
service the Mortgage Loans properly and effectively.
(c) Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so act,
or
shall, if it is unable to so act or if any NIMS Insurer so requests in writing
to the Trustee, request the Depositor to appoint, petition a court of competent
jurisdiction to appoint, or appoint on its own behalf any established housing
and home finance institution servicer, master servicer, servicing or mortgage
servicing institution acceptable to the NIMS Insurer having a net worth of
not
less than $15,000,000 and meeting such other standards for a successor master
servicer as are set forth in this Agreement, as the successor to such Master
Servicer in the assumption of all of the responsibilities, duties or liabilities
of a master servicer, like the Master Servicer hereunder. Any entity designated
by the Trustee as a successor master servicer may be an Affiliate of the
Trustee; provided, however, that, unless such Affiliate meets the net worth
requirements and other standards set forth herein for a successor master
servicer, the Trustee in its individual capacity shall agree, at the time of
such designation, to be and remain liable to the Trust Fund for such Affiliate’s
actions and omissions in performing its duties hereunder. In connection with
such appointment and assumption, the Trustee may make such arrangements for
the
compensation of such successor out of payments on Mortgage Loans as it and
such
successor shall agree; provided, however, that no such compensation shall be
in
excess of that permitted to the Master Servicer hereunder. The Trustee and
such
successor shall take such actions, consistent with this Agreement, as shall
be
necessary to effectuate any such succession and may make other arrangements
with
respect to the servicing to be conducted hereunder which are not inconsistent
herewith. The Master Servicer shall cooperate with the Trustee and any successor
master servicer in effecting the termination of the Master Servicer’s
responsibilities and rights hereunder including, without limitation, notifying
Mortgagors of the assignment of the master servicing functions and providing
the
Trustee and successor master servicer, as applicable, all documents and records
in electronic or other form reasonably requested by it to enable it to assume
the Master Servicer’s functions hereunder and the transfer to the Trustee or
successor master servicer, as applicable, all amounts which shall at the time
be
or should have been deposited by the Master Servicer in the Collection Account
and any other account or fund maintained with respect to the Certificates or
thereafter be received with respect to the Mortgage Loans. Neither the Trustee
nor any other successor master servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of
the
Master Servicer to deliver, or any delay in delivering, cash, documents or
records to it, (ii) the failure of the Master Servicer to cooperate as required
by this Agreement, (iii) the failure of the Master Servicer to deliver the
Mortgage Loan data to the Trustee or such successor master servicer as required
by this Agreement or (iv) restrictions imposed by any regulatory authority
having jurisdiction over the Master Servicer. No successor master servicer
shall
be deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by
(i)
the failure of the terminated Master Servicer to deliver, or any delay in
delivering cash, documents or records to it, or (ii) the failure of the
terminated Master Servicer to cooperate as required by this
Agreement.
114
Section
6.15 Additional
Remedies of Trustee Upon Event of Default.
During
the continuance of any Event of Default, so long as such Event of Default shall
not have been remedied, the Trustee, in addition to the rights specified in
Section 6.14, shall have the right, in its own name and as trustee of an express
trust, to take all actions now or hereafter existing at law, in equity or by
statute to enforce its rights and remedies and to protect the interests, and
enforce the rights and remedies, of any NIMS Insurer and the Certificateholders
(including the institution and prosecution of all judicial, administrative
and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and
each
and every remedy shall be cumulative and in addition to any other remedy, and
no
delay or omission to exercise any right or remedy shall impair any such right
or
remedy or shall be deemed to be a waiver of any Event of Default.
Section
6.16 Waiver
of Defaults.
More
than
50% of the Aggregate Voting Interests of Certificateholders (with the consent
of
any NIMS Insurer) may waive any default or Event of Default by the Master
Servicer in the performance of its obligations hereunder, except that a default
in the making of any required deposit to the Certificate Account that would
result in a failure of the Trustee to make any required payment of principal
of
or interest on the Certificates may only be waived with the consent of 100%
of
the affected Certificateholders and with the consent of any NIMS Insurer. Upon
any such waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
Section
6.17 Notification
to Holders.
Upon
termination of the Master Servicer or appointment of a successor to the Master
Servicer, in each case as provided herein, the Trustee shall promptly mail
notice thereof by first class mail to the Certificateholders at their respective
addresses appearing on the Certificate Register, the Swap Counterparty and
any
NIMS Insurer. The Trustee shall also, within 45 days after the occurrence of
any
Event of Default known to a Responsible Officer of the Trustee, give written
notice thereof to any NIMS Insurer and the Certificateholders, unless such
Event
of Default shall have been cured or waived prior to the issuance of such notice
and within such 45 day period.
Section
6.18 Directions
by Certificateholders and Duties of Trustee During Event of
Default.
Subject
to the provisions of Section 8.01 hereof, during the continuance of any Event
of
Default, Holders of Certificates evidencing not less than 25% of the Class
Principal Amount (or Percentage Interest) of each Class of Certificates affected
thereby may, with the consent of any NIMS Insurer, direct the time, method
and
place of conducting any proceeding for any remedy available to the Trustee,
or
exercising any trust or power conferred upon the Trustee, under this Agreement;
provided, however, that the Trustee shall be under no obligation to pursue
any
such
115
remedy,
or to exercise any of the trusts or powers
vested in it by this Agreement (including, without limitation, (i) the
conducting or defending of any administrative action or litigation hereunder
or
in relation hereto and (ii) the terminating of the Master Servicer or any
successor master servicer from its rights and duties as master servicer
hereunder) at the request, order or direction of any of the Certificateholders,
or any NIMS Insurer, unless such Certificateholders, or any NIMS Insurer, shall
have offered to the Trustee reasonable security or indemnity against the cost,
expenses and liabilities which may be incurred therein or thereby; and, provided
further, that, subject to the provisions of Section 8.01, the Trustee shall
have
the right to decline to follow any such direction if the Trustee, in accordance
with an Opinion of Counsel, determines that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith determines that the
action or proceeding so directed would involve it in personal liability for
which it is not indemnified to its satisfaction or be unjustly prejudicial
to
the non assenting Certificateholders.
Section
6.19 Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
In
the
event that a Responsible Officer of the Trustee shall have actual knowledge
of
any action or inaction of the Master Servicer that would become an Event of
Default upon the Master Servicer’s failure to remedy the same after notice, the
Trustee shall give notice thereof to the Master Servicer and the Swap
Counterparty. For all purposes of this Agreement, in the absence of actual
knowledge by a Responsible Officer of the Trustee, the Trustee shall not be
deemed to have knowledge of any failure of the Master Servicer or any other
Event of Default unless notified in writing by the Depositor, the Master
Servicer or the Certificateholders.
Section
6.20 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. The Trustee shall prepare
and
file required 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 Form 1099
supplemental tax information and such other information within the control
of
the Trustee as the Depositor may reasonably request in writing, and shall
distribute to each Certificateholder such forms and furnish such information
within the control of the Trustee as are required by the Code and the REMIC
Provisions to be furnished to them, and will prepare and distribute to
Certificateholders Form 1099 (supplemental tax information) (or otherwise
furnish information within the control of the Trustee) to the extent required
by
applicable law. The Master Servicer shall indemnify the Trustee for any
liability of or assessment against the Trustee arising out of or based upon
any
error in any of such tax or information returns arising out of or based upon
errors in the information provided by such Master Servicer.
(b) The
Trustee shall prepare and file with the IRS, on behalf of each REMIC created
hereby, an application on IRS Form SS-4. The Trustee, upon receipt from the
IRS
of the Notice
116
of
Taxpayer Identification Number Assigned for each
REMIC, shall promptly forward copies of such notices to the Master Servicer
and
the Depositor. The Trustee will file an IRS Form 8811 for all REMICs created
hereunder. The Trustee shall have no obligation to verify the information in
any
Form 8811 or Form SS-4 filing.
(c) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (or, if applicable, within such shorter period
of time as is required under the rules of the Commission as in effect from
time
to time (the “Rules”)) during each year in which the Trust Fund is subject to
Exchange Act reporting requirements, 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 attached thereto. 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 Q-1 hereto, within five calendar days after the related
Distribution Date, (A) certain parties to the Xxxxxx XS Trust Mortgage
Pass-Through Certificates, Series 2007-20N transaction, as identified in Exhibit
Q-1, shall provide to the Trustee, to the extent known by 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 Additional Form 10-D
Disclosure, if applicable, and included with such Additional Form 10-D
Disclosure, an Additional Disclosure Notification in the form attached hereto
as
Exhibit Q-4, (B) the Trustee shall forward to the Depositor, the form and
substance of the Additional Form 10-D Disclosure, and (C) 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.
(iii) After
preparing the Form 10-D, the Trustee shall forward electronically a draft copy
of the Form 10-D to the Exchange Act Signing Party for review and approval.
If
the Master Servicer is the Exchange Act Signing Party and the Form 10-D includes
Additional Form 10-D Disclosure, then the Form 10-D shall also be electronically
distributed to the Depositor for review and approval. No later than two Business
Days prior to the 15th calendar day after the related Distribution Date, a
senior officer of the Exchange Act Signing Party shall sign the Form 10-D and
return an electronic or fax copy of such signed Form 10-D (with an original
executed hard copy to follow by overnight mail) to the Trustee. If a Form 10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Trustee will follow the procedures set forth in subsection (f)(ii) of this
Section 6.20. 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. Each party to
this
Agreement acknowledges that the performance by the Trustee of its duties under
this Section 6.20(c) related
117
to
the timely preparation and filing of Form 10-D is
contingent upon such parties strictly observing all applicable deadlines in
the
performance of their duties under this Section 6.20(c). 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.
(d) Reports
Filed on Form 10-K.
(i) Unless
and until a Form 15 suspension notice shall have been filed, on or prior to
the
90th
calendar
day after the end of each fiscal year of the Trust Fund or such earlier date
as
may be required by the Exchange Act (the “10-K Filing Deadline”) (it being
understood that the fiscal year for the Trust Fund ends on December 31st of
each
year), commencing in March 2008, the 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 and in the Servicing Agreement and the Custodial
Agreement, (A) an annual compliance statement for the Servicer, each Additional
Servicer and the Master Servicer, as described under Section 9.26 hereof and
in
the Servicing Agreement, (B)(I) the annual reports on assessment of compliance
with servicing criteria for the Servicer, the Custodian, each Additional
Servicer, the Master Servicer, any Servicing Function Participant, the Paying
Agent (if other than the Trustee) and the Trustee (each, a “Reporting
Servicer”), as described under Section 9.25(a) hereof and in the Servicing
Agreement and Custodial Agreement, and (II) if any Reporting Servicer’s report
on assessment of compliance with servicing criteria described under Section
9.25(a) hereof or in the Servicing Agreement or 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 9.25(a) hereof or in the
Servicing Agreement or 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
9.25(b) hereof and in the Servicing Agreement and Custodial Agreement and (II)
if any registered public accounting firm attestation report described under
Section 9.25(b) hereof or in the Servicing Agreement or 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.
118
(ii) As
set
forth on Exhibit Q-2 hereto, no later than March 15 of each year that the Trust
Fund is subject to the Exchange Act reporting requirements, commencing in 2008,
(A) certain parties to the Xxxxxx XS Trust Mortgage Pass-Through Certificates,
Series 2007-20N transaction, as identified in Exhibit Q-2, shall provide to
the
Trustee, to the extent known by 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 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 Q-4,
(B) the Trustee shall forward to the Depositor, the form and substance of the
Additional Form 10-K Disclosure, and (C) 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
Q-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 draft copy
of the Form 10-K to the Exchange Act Signing Party for review and approval.
If
the Master Servicer is the Exchange Act Signing Party and the Form 10-K includes
Additional Form 10-K Disclosure, then the Form 10-K shall also be electronically
distributed to the Depositor for review and approval. No later than the close
of
business New York City time on the 4th Business Day prior to the 10-K Filing
Deadline, a senior officer of the Exchange Act Signing Party shall sign the
Form
10-K and return an electronic or fax copy of such signed Form 10-K (with an
original executed hard copy to follow by overnight mail) to the Trustee. If
a
Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be
amended, the Trustee will follow the procedures set forth in subsection (f)
of
this Section 6.20. 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.
The
parties to this Agreement acknowledge that the performance by the Trustee of
its
duties under this Section 6.20(d) related to the timely preparation and filing
of Form 10-K is contingent upon such parties (and any Additional Servicer or
Servicing Function Participant) strictly observing all applicable deadlines
in
the performance of their duties under this Section 6.20(d), Section 9.25(a),
Section 9.25(b) and Section 9.26. The Trustee shall have no liability for any
loss, expense, damage, claim arising out of or with respect to any failure
to
properly prepare and/or timely file such Form 10-K, where such failure results
from the Trustee’s inability or failure to obtain or receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence, bad
faith or willful misconduct.
(iv) Each
Form
10-K shall include the Xxxxxxxx-Xxxxx Certification. The Trustee (including
in
its capacity as Paying Agent, if applicable), the Paying Agent (if other than
the Trustee) and, if the Depositor is the Exchange Act Signing Party, the Master
Servicer, shall, and the Trustee (including in its capacity as Paying Agent,
if
applicable), the Paying Agent (if other than the Trustee) and the Master
Servicer (if applicable) shall cause any Servicing Function Participant engaged
by it to, provide to the Person who signs the Xxxxxxxx-Xxxxx Certification
119
(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 T
(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,
and (y) the Trustee, the form attached hereto as Exhibit U), 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 Master Servicer, the Trustee,
the
Paying Agent 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 6.20(d)(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.
(e) Reports
Filed on Form 8-K.
(i) During
any year in which the Trust Fund is subject to Exchange Act reports, within
four
Business Days after the occurrence of an event requiring disclosure on Form
8-K
(each such event, a “Reportable Event”) or such later date as may be required by
the Commission, 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 paragraphs 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 Q-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 Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series
2007-20N transaction, as identified in Exhibit Q-3, shall provide to the
Trustee, to the extent known by 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 Q-4,
(B) the Trustee shall forward to the Depositor, the form and substance of the
Form 8-K Disclosure Information, and (C) the Depositor will approve, as to
form
and substance, or disapprove, as the case may be, the inclusion of the Form
8-K
Disclosure
120
Information.
The Trustee has no duty under this
Agreement to monitor or enforce the performance by the parties listed on Exhibit
Q-3 of their duties under this paragraph or proactively solicit or procure
from
such parties any Form 8-K Disclosure Information. The 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
draft copy of the Form 8-K to the Exchange Act Signing Party for review and
approval. If the Master Servicer is the Exchange Act Signing Party, then the
Form 8-K shall also be electronically distributed to the Depositor for review
and approval. No later than 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 (f) of this Section 6.20. 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. The parties to this Agreement acknowledge that the performance by the
Trustee of its duties under this Section 6.20(e) related to the timely
preparation and filing of Form 8-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 6.20(e). The Trustee shall have no liability for any loss, expense,
damage or claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 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.
(f) Delisting;
Amendments; Late Filings.
(i) Prior
to
January 30 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
immediately notify the Depositor. In the case of Form 10-D and 10-K, the parties
to this Agreement and the Servicer will cooperate to prepare and file a Form
12b-25 and a 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25 of the
Exchange Act. In the case of Form 8-K, the Trustee will, upon receipt of all
required Form 8-K Disclosure Information and upon the approval and direction
of
the Depositor, include such disclosure information on the next Form 10-D. In
the
event that any previously filed Form 8-K, 10-D or 10-K needs to be amended,
the
Trustee will notify the Depositor and the Servicer and such parties will
cooperate to prepare any necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form
12b-25 or any amendment to
121
Form
8-K, 10-D or 10-K shall be signed by a senior
officer of the Exchange Act Signing Party. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
6.20(f) 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.
(g) 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.
(h) The
Depositor and the Master Servicer, by mutual agreement, shall determine which
of
the Depositor or the Master Servicer shall be the initial Exchange Act Signing
Party. Upon such determination, the Depositor shall timely notify the Trustee,
and such notice shall provide contact information for the Exchange Act Signing
Party. If the Depositor and Master Servicer, at any time, mutually agree to
change the identity of the Exchange Act Signing Party, the Depositor shall
provide timely notice to the Trustee of any such change.
(i) The
Trustee shall promptly send copies of each periodic report filed on Form 8-K,
Form 10-D or other applicable form, each annual report on Form 10-K, and each
Form 15 Suspension Notification, together in each case with the acceptance
confirmation receipt from XXXXX, to XxXxx Xxxxxx LLP and to the Depositor (i)
by
e-mail to the e-mail addresses provided in writing by each of XxXxx Xxxxxx
LLP
and the Depositor, respectively and (ii) to XxXxx Xxxxxx LLP at 0000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000, and to the Depositor at the address specified
in
Section 11.07, in each case to the attention of a designated contact specified
by each of XxXxx Xxxxxx LLP and the Depositor, respectively.
Section
6.21 Reporting
Requirements of the Commission.
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01,
6.20, 9.25(a) and 9.25(b) of this Agreement is to facilitate compliance by
the
Sponsor, the Master Servicer and the Depositor with the provisions of Regulation
AB, as such may be amended or clarified from time to time. Therefore, each
of
the parties agrees that (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, convention or consensus among active participants in the asset-backed
securities markets, advice
122
of
counsel, 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, the Master Servicer or the Trustee for delivery
of additional or different information as the Sponsor, the Depositor, the Master
Servicer or the Trustee may determine in good faith is necessary to comply
with
the provisions of Regulation AB, provided that such information is available
without unreasonable effort or expense and within such timeframe as may be
reasonably requested.
Section
6.22 Indemnification
by the Trustee.
The
Trustee (including in its capacity as Paying Agent) agrees to indemnify the
Depositor and the Master Servicer, 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
engagement of any Subcontractor in violation of Section 6.01(l) or any failure
by the Trustee to deliver when and as required the information pursuant to
Section 6.01(m), the disclosure applicable to the Trustee pursuant to Sections
6.20(c)(ii), 6.20(d)(ii) and 6.20(e)(ii), the certification applicable to the
Trustee pursuant to Section 6.20(d)(iv) or any assessment of compliance pursuant
to Section 9.25(a). This indemnification shall survive the termination of this
Agreement or the termination of the Trustee hereunder.
ARTICLE
VII.
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
Section
7.01 Purchase
of Mortgage Loans; Termination of the Trust Fund Upon Purchase or Liquidation
of
Mortgage Loans.
(a) The
respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders and the Swap Counterparty as set forth in Section
7.02, the obligation of the Master Servicer to make a final remittance to the
Trustee pursuant to Section 4.01, and the obligations of the Master Servicer
to
the Trustee pursuant to Sections 9.10 and 9.14) shall terminate on the earliest
of (i) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property, (ii) the
sale of the property held by the Trust Fund in accordance with Section 7.01(b)
and (iii) the Latest Possible Maturity Date; provided, however, that in no
event
shall the Trust Fund created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the
late Ambassador of the United States to the Court of St. James’s, living on the
date hereof. Any termination of the Trust Fund shall be carried out in such
a
manner so that the termination of each REMIC included therein shall qualify
as a
“qualified liquidation” under the REMIC Provisions.
(b) On
any
Distribution Date occurring on or after the Initial Optional Termination Date,
the Master Servicer, with the prior written consent of any NIMS Insurer and
the
Seller, which consent shall not be unreasonably withheld, has the option to
cause each of the SWAP
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REMIC,
REMIC 1, REMIC 2 and REMIC 3 to adopt a plan of
complete liquidation and to purchase the Mortgage Loans and any REO Property
related to the Mortgage Pool (the “Pool Assets”) for a price equal to the
Repurchase Price, pursuant to Section 7.03 hereof. Upon exercise of such option,
the property of the Mortgage Pool shall be sold to the Master Servicer at a
price (the “Repurchase Price”) equal to the sum of (i) 100% of the unpaid
principal balance of each Mortgage Loan on the day of such purchase plus
interest accrued thereon at the Mortgage Rate with respect to such Mortgage
Loan
to the Due Date in the Collection Period immediately preceding the Distribution
Date on which the proceeds of such sale will be distributed to the holders
of
the Certificates, (ii) the fair market value of any REO Property related to
the
Mortgage Loans and any other property related to the Mortgage Loans held by
any
REMIC, such fair market value to be determined by an independent appraiser
or
appraisers mutually agreed upon by the Master Servicer, any NIMS Insurer and
the
Trustee (reduced, in the case of REO Property, by (1) reasonably anticipated
disposition costs and (2) any amount by which the fair market value as so
reduced exceeds the outstanding principal balance of the related Mortgage Loan
plus interest accrued thereon at the applicable Net Mortgage Rate to the date
of
such purchase), (iii) any unreimbursed Servicing Advances and other amounts
to
be reimbursed pursuant to the immediately following sentence related to the
Mortgage Loans, (iv) any Swap Termination Payment payable to the Swap
Counterparty as a result of a termination pursuant to this Section 7.01 (v)
any
Cap Termination Payment payable to the Cap Provider as a result of a termination
pursuant to this Section 7.01; provided, however, if there are any NIM
Securities outstanding, the Master Servicer may only exercise its option after
receiving the prior written consent of the holders of such NIM Securities and,
if such consent is given, the Repurchase Price shall also include an amount
equal to the sum of (1) any accrued interest on the NIM Securities related
to
the Mortgage Loans, (2) the unpaid principal balance of any such NIM Securities
and (3) any other reimbursable expenses owed by the issuer of the NIM Securities
(the “NIM Redemption Amount”); and
provided, further, that if any Cap Termination Payment is payable to the Cap
Counterparty, the Master Servicer may only exercise its option if the Cap
Counterparty does not object thereto in writing in a timely manner. The
Master Servicer, the Servicer, the Trustee and the Custodian shall be reimbursed
from the Repurchase Price for any Mortgage Loan or related REO Property for
any
Advances made or other amounts advanced with respect to the Mortgage Loans
that
are reimbursable to any such entity under this Agreement, the related Servicing
Agreement or the Custodial Agreement, together with any accrued and unpaid
compensation and any other amounts due to the Master Servicer or the Trustee
hereunder or the applicable Servicer or the Custodian, to the extent such
amounts relate to the Mortgage Loans. If the Master Servicer fails to exercise
such right, the NIMS Insurer will have the option to direct the Master Servicer
to exercise such option so long as it is insuring the NIM Securities or it
is
owed any amounts in connection with its guaranty of the NIM Securities.
Following receipt of such notice from the NIMS Insurer, the Master Servicer
shall advise the NIMS Insurer whether it will exercise the option under this
Section 7.01(b) for its own account and using its own funds, or whether it
will
exercise such option in its own name but for the NIMS Insurer's account and
utilizing the NIMS Insurer's funds. If the Master Servicer exercises such option
for the NIMS Insurer's account, the NIMS Insurer will remit the Repurchase
Price
to the Master Servicer one Business Day prior to the day the Master Servicer
is
required to remit the Repurchase Price to the Trustee. Following its receipt
from the NIMS Insurer of the entire Repurchase Price and its subsequent
remittance to the Trustee of the entire Repurchase Price, the Master Servicer
will convey to the NIMS Insurer all of the rights it receives from the Trustee
with respect to the
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related
Mortgage Loans as a result of such remittance.
Subject to Section 7.03, the Trustee shall distribute the assets of the Trust
Fund on the Distribution Date on which the repurchase occurred. If the NIMS
Insurer directs the Master Servicer to exercise such right as described above,
then (i) the Master Servicer shall cause each REMIC to adopt a plan of complete
liquidation as described above and (ii) the NIMS Insurer shall remit the
Repurchase Price in immediately available funds to the Master Servicer at least
three Business Days prior to the applicable Distribution Date and, upon receipt
of such funds from the NIMS Insurer, the Master Servicer shall promptly deposit
such funds in the Collection Account. The NIMS Insurer shall be obligated to
reimburse the Master Servicer and the Trustee for their reasonable out-of-pocket
expenses incurred in connection with the purchase of the Mortgage Loans and
REO
Property related to the Mortgage Pool at the direction of the NIMS Insurer
and
shall indemnify and hold harmless the Master Servicer and the Trustee for any
losses, liabilities or expenses resulting from any claims arising out of or
based upon the Master Servicer’s or Trustee’s purchase of the Pool Assets at the
direction of the NIMS Insurer at the direction of the NIMS Insurer, except
to
the extent such losses, liabilities or expenses arise out of or result from
the
Master Servicer’s or Trustee’s, as the case may be, negligence, bad faith or
willful misconduct. Notwithstanding the foregoing, for purposes of the REMIC
Provisions, any portion of the Repurchase Price consisting of any Swap
Termination Payment, Cap Termination Payment or NIM Redemption Amount shall
be
treated as not having been paid into any REMIC.
Section
7.02 Procedure
Upon Termination of Trust Fund.
(a) Notice
of
any termination pursuant to the provisions of Section 7.01, specifying the
Distribution Date upon which the final distribution shall be made, shall be
given promptly by the Trustee by first class mail to the Certificateholders,
the
Swap Counterparty and any NIMS Insurer, mailed upon (x) no later than five
Business Days after the Trustee has received notice from the Master Servicer
of
its intent to exercise its right to cause the termination of the Trust Fund
pursuant to Section 7.01(b) or (y) upon final payment or other liquidation
of
the last Mortgage Loan or REO Property in the Trust Fund. Such notice shall
specify (A) the Distribution Date upon which final distribution on the
Certificates of all amounts required to be distributed to Certificateholders
pursuant to Section 5.02 will be made upon presentation and surrender of the
related Certificates at the Corporate Trust Office, and (B) that the Record
Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the related Certificates
at
the office or agency of the Trustee therein specified. The Trustee shall give
such notice to the Master Servicer, the Swap Counterparty, the Custodians and
the Certificate Registrar at the time such notice is given to Holders of the
related Certificates. Upon any termination pursuant to Section 7.01(b), the
duties of the Certificate Registrar with respect to the applicable Certificates
shall terminate and the Trustee shall terminate or request the Master Servicer
to terminate, the Collection Account it maintains, the Certificate Account
and
any other account or fund maintained with respect to the related Certificates,
subject to the Trustee’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
(b) In
the
event that all of the Holders do not surrender their Certificates for
cancellation within three months after the time specified in the above mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within
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one
year after the second notice any Certificates shall
not have been surrendered for cancellation, the Trustee may take appropriate
steps to contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice
any
Certificates shall not have been surrendered for cancellation, the Trustee
shall, subject to applicable state law relating to escheatment, hold all amounts
distributable to such Holders for the benefit of such Holders. No interest
shall
accrue on any amount held by the Trustee and not distributed to a
Certificateholder due to such Certificateholder’s failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with
this Section.
(c) Any
reasonable expenses incurred by the Trustee in connection with any termination
or liquidation of the Trust Fund shall be reimbursed from proceeds received
from
the liquidation of the Mortgage Pool.
Section
7.03 Additional
Trust Fund Termination Requirements.
Any
sale
pursuant to Section 7.01(b) shall be effected in accordance with the following
additional requirements, unless the Trustee seeks (at the request of the party
exercising the option to repurchase all of the Mortgage Loans pursuant to
Section 7.01(b)), and subsequently receives, an Opinion of Counsel (at the
expense of such requesting party), addressed to the Trustee and any NIMS Insurer
to the effect that the failure of the Trust Fund to comply with the requirements
of this Section 7.03 will not (I) result in the imposition of taxes on any
REMIC
under the REMIC Provisions or (II) cause any REMIC established hereunder to
fail
to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) On
the
date specified for final payment of the Certificates, the Trustee shall make
final distributions of principal and interest on the Certificates and shall
pay
any Swap Termination Payment owed to the Swap Counterparty on the related Swap
Payment Date (to the extent not paid on previous Swap Payment Dates) in
accordance with Section 5.02 and, after payment of, or provision for any
outstanding expenses, distribute or credit, or cause to be distributed or
credited, to the Holders of the Residual Certificates all cash on hand after
such final payment (other than cash retained to meet claims), and the Trust
Fund
(and each REMIC) shall terminate at that time;
(ii) In
the
case of a sale of assets:
(a) The
Trustee shall sell all of the assets of the Mortgage Pool for cash and, within
90 days of such sale, shall distribute the proceeds of such sale to the
Certificateholders in complete liquidation of each REMIC; and
(b) The
Trustee shall attach a statement to the final Federal income tax return for
each
REMIC stating that pursuant to Treasury Regulation § 1.860F-1, the first
day of the 90-day liquidation period for each such REMIC was the date on which
the Trustee sold such assets.
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Section
7.04 Optional
Purchase Right of NIMS Insurer.
The
NIMS
Insurer may purchase any Distressed Mortgage Loan for a purchase price equal
to
the outstanding principal balance of such Mortgage Loan, plus accrued interest
thereon to the date of repurchase plus any unreimbursed Advances, Servicing
Advances, Servicing Fees or Trustee Fees and any unreimbursed expenses of the
Trustee allocable to such Distressed Mortgage Loan. Any such purchase shall
be
accomplished by the NIM Insurer’s remittance of the purchase price for the
Distressed Mortgage Loan to the Master Servicer for deposit into the Collection
Account.
ARTICLE
VIII.
RIGHTS
OF
CERTIFICATEHOLDERS
Section
8.01 Limitation
on Rights of Holders.
(a) The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of this Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any
of
them. Except as otherwise expressly provided herein, no Certificateholder,
solely by virtue of its status as a Certificateholder, shall have any right
to
vote or in any manner otherwise control the Master Servicer or the operation
and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association, nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(b) No
Certificateholder, solely by virtue of its status as Certificateholder, shall
have any right by virtue or by availing of any provision of this Agreement
to
institute any suit, action or proceeding in equity or at law upon or under
or
with respect to this Agreement, unless such Holder previously shall have given
to the Trustee a written notice of an Event of Default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing not less than 25% of the Class Principal Amount or Class Notional
Amount (or Percentage Interest) of Certificates of each Class affected thereby
shall have made written request upon the Trustee to institute such action,
suit
or proceeding in its own name as Trustee hereunder and shall have offered to
the
Trustee such reasonable indemnity as it may require against the cost, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for sixty
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding
and
no direction inconsistent with such written request has been given such Trustee
during such sixty day period by such Certificateholders; it being understood
and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing of any provision of this Agreement to affect, disturb or prejudice
the
rights of the Holders of any other of such Certificates, or to obtain or seek
to
obtain priority over or preference to any other such
127
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.
(c) Every
Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving
and holding a Certificate, agrees with the Depositor, the Master Servicer,
the
Certificate Registrar and the Trustee, that none of the Depositor, the Master
Servicer, the Certificate Registrar, the Paying Agent or 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, the Certificate Registrar and the
Paying Agent and, where expressly required herein, to the Master Servicer.
Such
instrument or instruments (as the action embodies therein and evidenced thereby)
are herein sometimes referred to as an “act” of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of
a
writing appointing any such agents shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee and the Master Servicer, if
made in the manner provided in this Section. Each of the Trustee and the Master
Servicer shall promptly notify the other of receipt of any such instrument
by
it, and shall promptly forward a copy of such instrument to the
other.
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(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
none of the Trustee, the Master Servicer, the Paying Agent or 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 or
the
Master Servicer in reliance thereon, whether or not notation of such action
is
made upon such Certificate.
ARTICLE
IX.
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE
MASTER SERVICER
Section
9.01 Duties
of the Master Servicer.
The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint Aurora Loan Services LLC, as Master Servicer. For and on behalf of
the
Depositor, the Trustee and the Certificateholders, the Master Servicer shall
master service the Mortgage Loans in accordance with the provisions of this
Agreement and the provisions of the Servicing Agreements.
Section
9.02 Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
(a) The
Master Servicer, at its expense, shall maintain in effect a Master Servicer
Fidelity Bond and a Master Servicer Errors and Omissions Insurance Policy,
affording coverage with respect to all directors, officers, employees and other
Persons acting on such Master Servicer’s behalf, and covering errors and
omissions in the performance of the Master Servicer’s obligations hereunder. The
Master Servicer Errors and Omissions Insurance Policy and the Master Servicer
Fidelity Bond shall be in such form and amount that would meet the requirements
of Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans,
and
if the Master Servicer receives notice that such policy is or shall be
cancelled, it shall immediately notify the NIMS Insurer. The Master Servicer
shall provide the Trustee and any
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NIMS
Insurer upon request, with a copy of such policy
and fidelity bond. The Master Servicer shall (i) require each Servicer to
maintain an Errors and Omissions Insurance Policy and the Servicer Fidelity
Bond
in accordance with the provisions of the applicable Servicing Agreement, (ii)
cause each Servicer to provide to the Master Servicer certificates evidencing
that such policy and bond is in effect and to furnish to the Master Servicer
any
notice of cancellation, non-renewal or modification of the policy or bond
received by it, as and to the extent provided in the applicable Servicing
Agreement, and (iii) furnish copies of such policies and of the certificates
and
notices referred to in clause (ii) to the Trustee upon request. The Fidelity
Bond and Errors and Omissions Insurance Policy may be obtained and maintained
in
blanket form.
(b) The
Master Servicer shall promptly report to the Trustee any material changes that
may occur in the Master Servicer Fidelity Bond or the Master Servicer Errors
and
Omissions Insurance Policy and shall furnish to the Trustee, on request,
certificates evidencing that such bond and insurance policy are in full force
and effect. The Master Servicer shall promptly report to the Trustee all cases
of embezzlement or fraud, if such events involve funds relating to the Mortgage
Loans. The total losses, regardless of whether claims are filed with the
applicable insurer or surety, shall be disclosed in such reports together with
the amount of such losses covered by insurance. If a bond or insurance claim
report is filed with any of such bonding companies or insurers, the Master
Servicer shall promptly furnish a copy of such report to the Trustee. Any
amounts relating to the Mortgage Loans collected by the Master Servicer under
any such bond or policy shall be promptly remitted by the Master Servicer to
the
Trustee for deposit into the Certificate Account. Any amounts relating to the
Mortgage Loans collected by a Servicer under any such bond or policy shall
be
remitted to the Master Servicer to the extent provided in the applicable
Servicing Agreement.
Section
9.03 Master
Servicer’s Financial Statements and Related Information.
For
each
year this Agreement is in effect, the Master Servicer shall submit to the
Trustee, each Rating Agency, any NIMS Insurer, and the Depositor a copy of
its
corporate parent’s audited financial statements on or prior to March 31 of each
year, beginning March 31, 2008. Such financial statements shall include
comparative balance sheets, income statements, statement of changes in
shareholder’s equity, statements of cash flows, a consolidating schedule showing
consolidated subsidiaries and any related notes required pursuant to generally
accepted accounting principles, certified by a nationally recognized firm of
Independent Accountants to the effect that such financial statements were
examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding
year.
Section
9.04 Power
to Act; Procedures.
(a) The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, and each Servicer shall have full power and authority (to
the
extent provided in the applicable Servicing Agreement) to do any and all things
that it may deem necessary or desirable in connection with the servicing and
administration of the Mortgage Loans, including but not limited to the power
and
authority (i) to execute and deliver, on behalf of the Certificateholders and
the Trustee, customary consents or waivers and other instruments and documents,
(ii) to
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consent
to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages, (iii) to collect any
Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate foreclosure
or other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan, in each case, in accordance with the provisions of this Agreement
and the applicable Servicing Agreement, as applicable; provided that the Master
Servicer shall not take, or knowingly permit any Servicer to take, any action
that is inconsistent with or prejudices the interests of the Trust Fund or
the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee, or the Certificateholders under this Agreement. The
Master Servicer further is authorized and empowered by the Trustee, on behalf
of
the Certificateholders and the Trustee, in its own name or in the name of any
Servicer (to the extent permitted in the applicable Servicing Agreement), when
the Master Servicer or a Servicer, as the case may be, believes it is
appropriate in its best judgment to register any Mortgage Loan with MERS, or
cause the removal from the registration of any Mortgage Loan on the MERS system,
to execute and deliver, on behalf of the Trustee and the Certificateholders
or
any of them, any and all instruments of assignment and other comparable
instruments with respect to such assignment or re-recording of a Mortgage in
the
name of MERS, solely as nominee for the Trustee and its successors and assigns.
The Master Servicer shall represent and protect the interests of the Trust
Fund
in the same manner as it protects its own interests in mortgage loans in its
own
portfolio in any claim, proceeding or litigation regarding a Mortgage Loan
and
shall not make or knowingly permit any Servicer to make any modification, waiver
or amendment of any term of any Mortgage Loan that would cause an Adverse REMIC
Event. Without limiting the generality of the foregoing, the Master Servicer
in
its own name or in the name of a Servicer, and each Servicer, to the extent
such
authority is delegated to such Servicer under the applicable Servicing
Agreement, is hereby authorized and empowered by the Trustee when the Master
Servicer or a Servicer, as the case may be, believes it appropriate in its
best
judgment and in accordance with Accepted Servicing Practices and the applicable
Servicing Agreement, to execute and deliver, on behalf of itself and the
Certificateholders, the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and
all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. The Trustee shall execute, upon request,
any powers of attorney furnished to it by the Master Servicer empowering the
Master Servicer or such Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
to
foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Mortgage Loans or the
Mortgaged Property, in accordance with the applicable Servicing Agreement and
this Agreement, and the Trustee shall execute and deliver such other documents,
as the Master Servicer may request, necessary or appropriate to enable the
Master Servicer to master service the Mortgage Loans and carry out its duties
hereunder and to allow each Servicer to service the Mortgage Loans, in each
case
in accordance with Accepted Servicing Practices (and the Trustee shall have
no
liability for misuse of any such powers of attorney by the Master Servicer
or
the applicable Servicer). If the Master Servicer or the Trustee has been advised
that it is likely that the laws of the state in which action is to be taken
prohibit such action if taken in the name of the Trustee or that the Trustee
would be adversely affected under the “doing business” or tax laws of such state
if such action is taken in its name, then upon request of the Trustee the Master
Servicer shall join with the Trustee in the appointment of a co-trustee pursuant
to Section 6.09 hereof. In the performance of its duties hereunder, the Master
Servicer shall be an independent contractor and shall not, except in
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those
instances where it is taking action in the name of
the Trustee, be deemed to be the agent of the Trustee. Notwithstanding anything
to the contrary, the Master Servicer shall not without the Trustee’s written
consent: (i) initiate any action, suit or proceeding solely under the Trustee’s
name without indicating the Master Servicer’s representative capacity or (ii)
take any action with the intent to cause, and which actually does cause, the
Trustee to be registered to do business in any state.
(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall employ
procedures, and shall exercise the same care that it customarily employs and
exercises master servicing and administering loans for its own account, giving
due consideration to Accepted Servicing Practices where such practices do not
conflict with this Agreement. Consistent with the foregoing, the Master Servicer
may, and may permit the Servicer to, in its discretion (i) waive any late
payment charge (but not any Prepayment Premium, except as set forth below)
and
(ii) extend the due dates for payments due on a Mortgage Note; provided,
however, that the maturity of any Mortgage Loan shall not be extended past
the
date on which the final payment is due on the latest maturing Mortgage Loan
as
of the Cut-off Date. Notwithstanding anything to the contrary in this Agreement,
the Master Servicer shall not make or knowingly permit any modification, waiver
or amendment of any material term of any Mortgage Loan unless: (1) such Mortgage
Loan is in default or default by the related Mortgagor is, in the reasonable
judgment of the Master Servicer or the applicable Servicer, reasonably
foreseeable, (2) in the case of a waiver of a Prepayment Premium if (a) such
waiver would maximize recovery of total proceeds taking into account the value
of such Prepayment Premium and the related Mortgage Loan or (b) if the
prepayment is not the result of a refinancing by the Servicer or any of its
Affiliates and (i) the collection of the Prepayment Premium would be in
violation of applicable laws or (ii) the collection of such Prepayment Premium
would be considered “predatory” pursuant to written guidance published or issued
by any applicable federal, state or local regulatory authority acting in its
official capacity and having jurisdiction over such matters, and (3) such
modification, waiver or amendment would not cause an Adverse REMIC
Event.
Section
9.05 Enforcement
of Servicers’ and Master Servicer’s Obligations.
(a) Each
Servicing Agreement requires the applicable Servicer to service the Mortgage
Loans in accordance with the provisions thereof. References in this Agreement
to
actions taken or to be taken by the Master Servicer include actions taken or
to
be taken by a Servicer on behalf of the Master Servicer. Any fees, costs,
expenses and other amounts payable to such Servicer shall be deducted from
amounts remitted to the Master Servicer by the Servicer to the extent permitted
by the applicable Servicing Agreement and shall not be an obligation of the
Trust Fund, the Trustee or the Master Servicer.
(b) The
Master Servicer shall not be required to (i) take any action with respect to
the
servicing of any Mortgage Loan that the applicable Servicer is not required
to
take under the related Servicing Agreement and (ii) cause a Servicer to take
any
action or refrain from taking any action if the related Servicing Agreement
does
not require such Servicer to take such action or refrain from taking such
action; in both cases notwithstanding any provision of this Agreement that
requires the Master Servicer to take such action or cause such Servicer to
take
such action.
132
(c) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall use its reasonable best efforts to enforce the obligations of each
Servicer under the related Servicing Agreement, and shall, upon obtaining actual
knowledge of the failure of a Servicer to perform its obligations in accordance
therewith, to the extent that such non-performance of such obligations would
have a material adverse effect on a Mortgage Loan, the Trust Fund or the
Certificateholders, terminate the rights and obligations of such Servicer
thereunder and either act as servicer of the related Mortgage Loans or cause
the
other parties hereto to enter into a Servicing Agreement (and such parties
hereby agree to execute and deliver any such successor Servicing Agreement),
with a successor Servicer. Such enforcement, including, without limitation,
the
legal prosecution of claims, termination of Servicing Agreements and the pursuit
of other appropriate remedies, shall be in such form and carried out to such
an
extent and at such time as the Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense,
and
shall be reimbursed therefor initially (i) from a general recovery resulting
from such enforcement only to the extent, if any, that such recovery exceeds
all
amounts due in respect of the related Mortgage Loans, (ii) from a specific
recovery of costs, expenses or attorneys’ fees against the party against whom
such enforcement is directed, and then, (iii) to the extent that such amounts
are insufficient to reimburse the Master Servicer for the costs of such
enforcement, from the Collection Account.
(d) The
Master Servicer shall be entitled to conclusively rely on any certifications
or
other information provided by the Servicers under the terms of the applicable
Servicing Agreement, in its preparation of any certifications, notifications,
filings or reports, in accordance with the terms hereof or as may be required
by
applicable law or regulation.
Section
9.06 Collection
of Taxes, Assessments and Similar Items.
(a) To
the
extent provided in the applicable Servicing Agreement, the Master Servicer
shall
cause each Servicer to establish and maintain one or more custodial accounts
at
a depository institution (which may be a depository institution with which
the
Master Servicer or the Servicer establishes accounts in the ordinary course
of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an “Escrow Account”) and to deposit therein
any collections of amounts received with respect to amounts due for taxes,
assessments, water rates, Standard Hazard Insurance Policy premiums, Payaheads,
if applicable, or any comparable items for the account of the Mortgagors.
Withdrawals from any Escrow Account may be made (to the extent amounts have
been
escrowed for such purpose) only in accordance with the Servicing Agreements.
Each Servicer shall be entitled to all investment income not required to be
paid
to Mortgagors on any Escrow Account maintained by such Servicer. The Master
Servicer shall make (or cause to be made) to the extent provided in the
applicable Servicing Agreement advances to the extent necessary in order to
effect timely payment of taxes, water rates, assessments, Standard Hazard
Insurance Policy premiums or comparable items in connection with the related
Mortgage Loan (to the extent that the Mortgagor is required, but fails, to
pay
such items), provided that it or the applicable Servicer has determined that
the
funds so advanced are recoverable from escrow payments, reimbursement pursuant
to Section 4.02 or otherwise.
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(b) Costs
incurred by the Master Servicer or by the Servicers in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage
Loans
may be added to the amount owing under the related Mortgage Note where the
terms
of the Mortgage Note so permit; provided, however, that the addition of any
such
cost shall not be taken into account for purposes of calculating the
distributions to be made to Certificateholders. Such costs, to the extent that
they are unanticipated, extraordinary costs, and not ordinary or routine costs
shall be recoverable as a Servicing Advance by the Master Servicer pursuant
to
Section 4.02.
Section
9.07 Termination
of Servicing Agreements; Successor Servicers.
(a) The
Master Servicer shall be entitled to terminate the rights and obligations of
any
Servicer under the applicable Servicing Agreement in accordance with the terms
and conditions of such Servicing Agreement and without any limitation by virtue
of this Agreement; provided, however, that in the event of termination of any
Servicing Agreement by the Master Servicer or a related Servicer, the Master
Servicer shall either act as Servicer of the related Mortgage Loans or provide
for the servicing of the Mortgage Loans by a successor Servicer to be appointed
as provided in the related Servicing Agreement.
The
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer of
servicing to a successor Servicer. The Master Servicer shall be entitled to
be
reimbursed from each Servicer (or by the Trust Fund, if such Servicer is unable
to fulfill its obligations hereunder) for all costs associated with the transfer
of servicing from the predecessor servicer, including without limitation, any
costs or expenses associated with the complete transfer of all servicing data
and the completion, correction or manipulation of such servicing data, as may
be
required by the Master Servicer to correct any errors or insufficiencies in
the
servicing data or otherwise to enable the Master Servicer to service the
Mortgage Loans properly and effectively.
(b) If
the
Master Servicer acts as a successor Servicer, it will not assume liability
for
the representations and warranties of the Servicer, if any, that it replaces.
The Master Servicer shall use reasonable efforts to have the successor Servicer
assume liability for the representations and warranties made by the terminated
Servicer in the related Servicing Agreement, and in the event of any such
assumption by the successor Servicer, the Trustee or the Master Servicer, as
applicable, may, in the exercise of its business judgment, release the
terminated Servicer from liability for such representations and
warranties.
(c) If
the
Master Servicer acts as a successor servicer, it will have no obligation to
make
an Advance if it determines in its reasonable judgment that such Advance is
non-recoverable. To the extent that the Master Servicer is unable to find a
successor servicer that is willing to service the Mortgage Loans for the
Servicing Fee because of the obligation of the servicer to make Advances
regardless of whether such Advance is recoverable, the applicable Servicing
Agreement may be amended to provide that the successor servicer shall have
no
obligation to make an Advance if it determines in its reasonable judgment that
such Advance is non-recoverable and provides an Officer’s Certificate to such
effect to the Master Servicer and the Trustee.
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Section
9.08 Master
Servicer Liable for Enforcement.
Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee and the Certificateholders in accordance with the provisions
of
this Agreement, to the extent of its obligations hereunder, without diminution
of such obligation or liability by virtue of such Servicing Agreements. The
Master Servicer shall use commercially reasonable efforts to ensure that the
Mortgage Loans are serviced in accordance with the provisions of this Agreement
and shall use commercially reasonable efforts to enforce the provisions of
each
Servicing Agreement for the benefit of the Certificateholders. The Master
Servicer shall be entitled to enter into any agreement with the Servicers for
indemnification of the Master Servicer and nothing contained in this Agreement
shall be deemed to limit or modify such indemnification. Except as expressly
set
forth herein, the Master Servicer shall have no liability for the acts or
omissions of any Servicer in the performance by such Servicer of its obligations
under the related Servicing Agreement.
Section
9.09 No
Contractual Relationship Between the Servicer, Any NIMS Insurer and Trustee
or
Depositor.
Any
Servicing Agreement and any other transactions or services relating to the
Mortgage Loans involving a Servicer in its capacity as such and not as an
originator shall be deemed to be between such Servicer, the Seller and the
Master Servicer, and the Trustee and the Depositor shall not be deemed parties
thereto and shall have no obligations, duties or liabilities with respect to
such Servicer except as set forth in Section 9.10 hereof, but shall have rights
thereunder as third party beneficiaries.
Section
9.10 Assumption
of Servicing Agreement by the Trustee.
(a) In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Event of Default under this Agreement), after a
period not to exceed ninety days after the issuance of any notice of termination
pursuant to Section 6.14 or Section 9.28, as applicable, the Trustee, or a
successor master servicer appointed by it in accordance with Section 6.14,
shall
assume all of the rights and obligations of such Master Servicer hereunder
and
under each Servicing Agreement entered into with respect to the Mortgage Loans.
The Trustee, its designee or any successor master servicer appointed by the
Trustee shall be deemed to have assumed all of the Master Servicer’s interest
herein and therein to the same extent as if such Servicing Agreement had been
assigned to the assuming party, except that the Master Servicer shall not
thereby be relieved of any liability or obligations of the Master Servicer
under
such Servicing Agreement accruing prior to its replacement as Master Servicer,
and shall be liable to the Trustee, and hereby agrees to indemnify and hold
harmless the Trustee from and against all costs, damages, expenses and
liabilities (including reasonable attorneys’ fees) incurred by the Trustee as a
result of such liability or obligations of the Master Servicer and in connection
with the Trustee’s assumption (but not its performance, except to the extent
that costs or liability of the Trustee are created or increased as a result
of
negligent or wrongful acts or omissions of the Master Servicer prior to its
replacement as Master Servicer) of the Master Servicer’s obligations, duties or
responsibilities thereunder; provided that the Master Servicer shall not
indemnify or hold harmless the Trustee against negligent or willful misconduct
of the Trustee.
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(b) The
Master Servicer that has been terminated shall, upon request of the Trustee
but
at the expense of such Master Servicer or at the expense of the Trust Fund,
deliver to the assuming party all documents and records relating to each
Servicing Agreement and the related Mortgage Loans and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of each Servicing Agreement to the assuming
party.
Section
9.11 Due-on-Sale
Clauses; Assumption Agreements; Easements.
(a) To
the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due on sale clauses, and to the extent that the Master
Servicer has knowledge of the conveyance of a Mortgaged Property, the Master
Servicer shall use its reasonable best efforts to cause the Servicers to enforce
such clauses in accordance with the applicable Servicing Agreement. If
applicable law prohibits the enforcement of a due on sale clause or such clause
is otherwise not enforced in accordance with the applicable Servicing Agreement,
and, as a consequence, a Mortgage Loan is assumed, the original Mortgagor may
be
released from liability in accordance with the applicable Servicing
Agreement.
(b) The
Master Servicer or the related Servicer, as the case may be, shall be entitled
to approve a request from a Mortgagor for the granting of an easement thereon
in
favor of another Person or any alteration or demolition of the related Mortgaged
Property if it has determined, exercising its good faith business judgment
in
the same manner as it would if it were the owner of the related Mortgage Loan,
that the security for, and the timely and full collectability of, such Mortgage
Loan would not be materially adversely affected thereby. Any fee collected
by
the Master Servicer or the related Servicer for processing such a request will
be retained by the Master Servicer or such Servicer as additional servicing
compensation.
Section
9.12 Release
of Mortgage Files.
(a) Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or (ii) the receipt
by the Master Servicer of a notification that payment in full has been or will
be escrowed in a manner customary for such purposes, the Master Servicer shall,
or shall cause the applicable Servicer to, promptly notify the Trustee (or
the
applicable Custodian) by a certification (which certification shall include
a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Collection Account maintained
by the Master Servicer pursuant to Section 4.01 hereof have been or will be
so
deposited) of a Servicing Officer and shall request (on the form attached hereto
as Exhibit C or on the form attached to the applicable Custodial Agreement)
the
Trustee or the applicable Custodian, to deliver to the applicable Servicer
the
related Mortgage File; provided, however, that in lieu of sending a hard copy
certification of a Servicing Officer, the Master Servicer may, or may cause
the
applicable Servicer to, deliver the request for release in a mutually agreeable
electronic format, and to the extent that such a request, on its face,
originates from a Servicing Officer, no original signature shall be required.
Upon receipt of such certification and request, the Trustee or the applicable
Custodian, shall promptly release the related Mortgage File to the Servicer
and
neither the Trustee nor such Custodian shall have any further responsibility
with regard to such Mortgage File. Upon any such payment in full, the Master
Servicer is authorized, and the applicable Servicer, to the extent such
authority is provided for under the related Servicing Agreement, is
136
authorized,
to give, as agent for the Trustee, as the
mortgagee under the Mortgage that secured the Mortgage Loan, an instrument
of
satisfaction (or assignment of mortgage without recourse) regarding the
Mortgaged Property subject to the Mortgage, which instrument of satisfaction
or
assignment, as the case may be, shall be delivered to the Person or Persons
entitled thereto against receipt therefor of such payment, it being understood
and agreed that no expenses incurred in connection with such instrument of
satisfaction or assignment, as the case may be, shall be chargeable to the
Collection Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, the Trustee shall execute such documents as shall be prepared and
furnished to the Trustee by the Master Servicer, or by the applicable Servicer
(in form reasonably acceptable to the Trustee) and as are necessary to the
prosecution of any such proceedings. The Trustee or the applicable Custodian,
shall, upon request of the Master Servicer, or of the applicable Servicer,
and
delivery to the Trustee or such Custodian, of a trust receipt signed by a
Servicing Officer substantially in the form of Exhibit C, release the related
Mortgage File held in its possession or control to the Master Servicer (or
the
applicable Servicer). Such trust receipt shall obligate the Master Servicer
or
applicable Servicer to return the Mortgage File to the Trustee or the applicable
Custodian, as applicable, when the need therefor by the Master Servicer or
applicable Servicer no longer exists unless (i) the Mortgage Loan shall be
liquidated, in which case, upon receipt of a certificate of a Servicing Officer
similar to that hereinabove specified, the trust receipt shall be released
by
the Trustee or the Custodian, as applicable, to the Master Servicer (or the
applicable Servicer) or (ii) the Mortgage File has been delivered directly
or
through a Servicer to an attorney, or to a public trustee or other public
official as required by law, for purposes of initiating or pursuing legal action
or other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and the Master Servicer has delivered directly
or
through a Servicer to the Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage
File
or such document was delivered and the purpose of such delivery.
Section
9.13 Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
(a) The
Master Servicer shall transmit, or shall cause the applicable Servicer to
transmit, to the Trustee such documents and instruments coming into the
possession of the Master Servicer or such Servicer from time to time as are
required by the terms hereof or of the related Servicing Agreement to be
delivered to the Trustee or the applicable Custodian. Any funds received by
the
Master Servicer or by a Servicer in respect of any Mortgage Loan or which
otherwise are collected by the Master Servicer or a Servicer as a Subsequent
Recovery, Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage
Loan shall be held for the benefit of the Trustee and the Certificateholders
subject to the Master Servicer’s right to retain or withdraw from the Collection
Account the Master Servicing Fee and other amounts provided in this Agreement
and to the right of each Servicer to retain its Servicing Fee and other amounts
as provided in the Servicing Agreement. The Master Servicer shall, and shall
(to
the extent provided in the applicable Servicing Agreement) cause each Servicer
to, provide access to information and documentation regarding the Mortgage
Loans
to the Trustee, its respective agents and accountants and to any NIMS Insurer,
at any time upon reasonable request and during
137
normal
business hours, and to Certificateholders that
are savings and loan associations, banks or insurance companies, the Office
of
Thrift Supervision, the FDIC and the supervisory agents and examiners of such
Office and Corporation or examiners of any other federal or state banking or
insurance regulatory authority if so required by applicable regulations of
the
Office of Thrift Supervision or other regulatory authority, such access to
be
afforded without charge but only upon reasonable request in writing and during
normal business hours at the offices of the Master Servicer designated by it.
In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information. The Master Servicer shall
afford the NIMS Insurer, and shall (to the extent provided in the Servicing
Agreement) cause the Servicer to afford the NIMS Insurer, upon reasonable
advance notice, during normal business hours access to all records related
to
their respective rights and obligations hereunder and access to officers of
the
Master Servicer and the Servicer responsible for such obligations.
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, or any Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from a Subsequent Recovery,
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master
Servicer, or by such Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property
of
the Trustee; provided, however, that the Master Servicer and each Servicer
shall
be entitled to setoff against, and deduct from, any such funds any amounts
that
are properly due and payable to the Master Servicer or such Servicer under
this
Agreement or the applicable Servicing Agreement and shall be authorized to
remit
such funds to the Trustee in accordance with this Agreement.
(c) The
Master Servicer hereby acknowledges that concurrently with the execution of
this
Agreement, the Trustee shall own or, to the extent that a court of competent
jurisdiction shall deem the conveyance of the Mortgage Loans from the Seller
to
the Depositor not to constitute a sale, the Trustee shall have a security
interest in the Mortgage Loans and in all Mortgage Files representing such
Mortgage Loans and in all funds and investment property now or hereafter held
by, or under the control of, a Servicer or the Master Servicer that are
collected by such Servicer or the Master Servicer in connection with the
Mortgage Loans, whether as scheduled installments of principal and interest
or
as full or partial prepayments of principal or interest or as a Subsequent
Recovery, Liquidation Proceeds or Insurance Proceeds or otherwise, and in all
proceeds of the foregoing and proceeds of proceeds (but excluding any fee or
other amounts to which such Servicer is entitled under the applicable Servicing
Agreement, or the Master Servicer or the Depositor is entitled to hereunder);
and the Master Servicer agrees that so long as the Mortgage Loans are assigned
to and held by the Trustee or the any Custodian, all documents or instruments
constituting part of the Mortgage Files, and such funds relating to the Mortgage
Loans which come into the possession or custody of, or which are subject to
the
control of, the Master Servicer or any Servicer shall be held by the Master
Servicer or such Servicer for and on behalf of the Trustee as the Trustee’s
agent and bailee for purposes of perfecting the Trustee’s security interest
therein as provided by the applicable Uniform Commercial Code or other
applicable laws.
(d) The
Master Servicer agrees that it shall not, and shall not authorize any Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are deposited
in any Custodial Account, Escrow Account or the Collection Account, or any
funds
that otherwise are or may
138
become
due or payable to the Trustee, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
Section
9.14 Representations
and Warranties of the Master Servicer.
(a) The
Master Servicer hereby represents and warrants to the Depositor and the Trustee,
for the benefit of the Certificateholders, as of the Closing Date
that:
(i) it
is
validly existing and in good standing under the laws of the State of Delaware,
and as Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and comply
with
its obligations under the terms of this Agreement, the execution, delivery
and
performance of which have been duly authorized by all necessary company action
on the part of the Master Servicer;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A) violate
the Master Servicer’s certificate
of formation or limited liability company agreement,
(B)
violate any law or regulation or any administrative decree or order to which
it
is subject or (C) constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the breach
of,
any material contract, agreement or other instrument to which the Master
Servicer is a party or by which it is bound or to which any of its assets are
subject, which violation, default or breach would materially and adversely
affect the Master Servicer’s ability to perform its obligations under this
Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv) the
Master Servicer is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument or
subject to any certificate of formation or limited liability company agreement
provision, or any other company restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and adversely affect
its ability as Master Servicer to perform its obligations under this Agreement
or that requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations under
this Agreement;
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering into
this Agreement or performing its obligations under this Agreement;
139
(vii) the
Master Servicer, or an Affiliate thereof the primary business of which is the
servicing of conventional residential mortgage loans, is a Xxxxxx Xxx- or
Xxxxxxx Mac-approved seller/servicer;
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer;
(x) the
Master Servicer has obtained an Errors and Omissions Insurance Policy and a
Fidelity Bond in accordance with Section 9.02 each of which is in full force
and
effect, and each of which provides at least such coverage as is required
hereunder; and
(xi) the
information about the Master Servicer under the heading “The Master Servicer” in
the Prospectus relating to the Master Servicer does not include an untrue
statement of a material fact and does not omit to state a material fact, with
respect to the statements made, necessary in order to make the statements in
light of the circumstances under which they were made not
misleading.
(b) It
is
understood and agreed that the representations and warranties set forth in
this
Section 9.14 shall survive the execution and delivery of this Agreement. The
Master Servicer shall indemnify the Depositor and the Trustee and hold them
harmless against any loss, damages, penalties, fines, forfeitures, legal fees
and related costs, judgments, and other costs and expenses arising out of or
based upon any claim, demand, defense or assertion based on or grounded upon,
or
resulting from, a breach of the Master Servicer’s representations and warranties
contained in Section 9.14(a). It is understood and agreed that the enforcement
of the obligation of the Master Servicer set forth in this Section to indemnify
the Depositor and the Trustee as provided in this Section constitutes the sole
remedy (other than as set forth in Section 6.14) of the Depositor and the
Trustee, respecting a breach of the foregoing representations and warranties.
Such indemnification shall survive any termination of the Master Servicer as
Master Servicer hereunder, and any termination of this Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by any of the Depositor, the Master Servicer, any
NIMS
Insurer or the Trustee or notice thereof by any one of such parties to the
other
parties. Notwithstanding anything in this Agreement to the contrary, the Master
Servicer shall not be liable for special, indirect or consequential losses
or
damages of any kind whatsoever (including, but not limited to, lost
profits).
(c) It
is
understood and agreed that the representations and warranties of the Depositor
set forth in Sections 2.03(a)(i) through (vi) shall survive the execution and
delivery of this Agreement. The Depositor shall indemnify the Master Servicer
and hold it harmless against
140
any
loss, damages, penalties, fines, forfeitures, legal
fees and related costs, judgments, and other costs and expenses resulting from
any claim, demand, defense or assertion based on or grounded upon, or resulting
from, a breach of the Depositor’s representations and warranties contained in
Sections 2.03(a)(i) through (vi) hereof. It is understood and agreed that the
enforcement of the obligation of the Depositor set forth in this Section to
indemnify the Master Servicer as provided in this Section constitutes the sole
remedy hereunder of the Master Servicer respecting a breach by the Depositor
of
the representations and warranties in Sections 2.03(a)(i) through (vi)
hereof.
Any
cause
of action against the Depositor relating to or arising out of the breach of
the
representations and warranties made in Sections 2.03(a)(i) through (vi) hereof
shall accrue upon discovery of such breach by either the Depositor or the Master
Servicer or notice thereof by any one of such parties to the other
parties.
Section
9.15 Opinion.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered to
the
Depositor, the Seller and the Trustee one or more Opinions of Counsel, dated
the
Closing Date, in form and substance reasonably satisfactory to the Depositor
and
Xxxxxx Brothers Inc., as to the due authorization, execution and delivery of
this Agreement by the Master Servicer and the enforceability
thereof.
Section
9.16 Standard
Hazard and Flood Insurance Policies.
For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
maintain, or cause to be maintained by each Servicer, standard fire and casualty
insurance and, where applicable, flood insurance, all in accordance with the
provisions of this Agreement and the Servicing Agreement, as applicable. It
is
understood and agreed that such insurance shall be with insurers meeting the
eligibility requirements set forth in the applicable Servicing Agreement and
that no earthquake or other additional insurance is to be required of any
Mortgagor or to be maintained on property acquired in respect of a defaulted
loan, other than pursuant to such applicable laws and regulations as shall
at
any time be in force and as shall require such additional
insurance.
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by any
Servicer, under any insurance policies maintained pursuant to this Section
9.16
or the applicable Servicing Agreement (other than amounts to be applied to
the
restoration or repair of the property subject to the related Mortgage or
released to the Mortgagor in accordance with such Servicing Agreement) shall
be
deposited into the Collection Account, subject to withdrawal pursuant to Section
4.02. Any cost incurred by the Master Servicer or any Servicer in maintaining
any such insurance if the Mortgagor defaults in its obligation to do so shall
be
added to the amount owing under the Mortgage Loan where the terms of the
Mortgage Loan so permit; provided, however, that the addition of any such cost
shall not be taken into account for purposes of calculating the distributions
to
be made to Certificateholders and shall be recoverable by the Master Servicer
or
such Servicer pursuant to Section 4.02.
141
Section
9.17 Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to, prepare and present on behalf of the Trustee
and the Certificateholders all claims under the Insurance Policies with respect
to the Mortgage Loans, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured’s claim) as shall be
necessary to realize recovery under such policies. Any proceeds disbursed to
the
Master Servicer (or disbursed to the Servicer and remitted to the Master
Servicer) in respect of such policies or bonds shall be promptly deposited
in
the Collection Account or any Custodial Account upon receipt, except that any
amounts realized that are to be applied to the repair or restoration of the
related Mortgaged Property or released to the related Mortgagor in accordance
with the Master Servicer’s or the applicable Servicer’s normal servicing
procedures need not be so deposited (or remitted).
Section
9.18 Maintenance
of the Primary Mortgage Insurance Policies.
(a) The
Master Servicer shall not take, or knowingly permit any Servicer (consistent
with the applicable Servicing Agreement) to take, any action that would result
in noncoverage under any applicable Primary Mortgage Insurance Policy of any
loss which, but for the actions of such Master Servicer or such Servicer, would
have been covered thereunder. To the extent that coverage is available, the
Master Servicer shall use its best reasonable efforts to keep in force and
effect, or to cause each Servicer to keep in force and effect (to the extent
that the Mortgage Loan requires the Mortgagor to maintain such insurance),
primary mortgage insurance applicable to each Mortgage Loan in accordance with
the provisions of this Agreement and the applicable Servicing Agreement, as
applicable. The Master Servicer shall not, and shall not knowingly permit any
Servicer to, cancel or refuse to renew any such Primary Mortgage Insurance
Policy that is in effect at the date of the initial issuance of the Certificates
and is required to be kept in force hereunder except in accordance with the
provisions of this Agreement and the applicable Servicing Agreement, as
applicable.
(b) The
Master Servicer agrees, to the extent provided in the related Servicing
Agreement, to cause each Servicer to present, on behalf of the Trustee and
the
Certificateholders, claims to the insurer under any Primary Mortgage Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Mortgage Insurance Policies
respecting defaulted Mortgage Loans. Pursuant to Section 4.01, any amounts
collected by the Master Servicer or any Servicer under any Primary Mortgage
Insurance Policies shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 4.02.
Section
9.19 Trustee
To Retain Possession of Certain Insurance Policies and Documents.
The
Trustee (or the applicable Custodian) shall retain possession and custody of
the
originals of the Primary Mortgage Insurance Policies or certificate of insurance
if applicable and any certificates of renewal as to the foregoing as may be
issued from time to time as contemplated by this Agreement. Until all amounts
distributable in respect of the Certificates have been distributed in full
and
the Master Servicer otherwise has fulfilled its obligations under this
Agreement, the Trustee (or the applicable Custodian) shall also retain
possession and
142
custody
of each Mortgage File in accordance with and
subject to the terms and conditions of this Agreement. The Master Servicer
shall
promptly deliver or cause the applicable Servicer to deliver to the Trustee
(or
the applicable Custodian), upon the execution or receipt thereof the originals
of the Primary Mortgage Insurance Policies and any certificates of renewal
thereof, and such other documents or instruments that constitute portions of
the
Mortgage File that come into the possession of the Master Servicer or a Servicer
from time to time.
Section
9.20 Realization
Upon Defaulted Mortgage Loans.
(a) The
Master Servicer shall use its reasonable best efforts to, or to cause the
applicable Servicer to, foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the applicable Servicing Agreement. Alternatively, the Master
Servicer may take, or authorize the applicable Servicer to take, other actions
in respect of a defaulted Mortgage Loan, which may include (i) accepting a
short
sale (a payoff of the Mortgage Loan for an amount less than the total amount
contractually owed in order to facilitate a sale of the Mortgaged Property
by
the Mortgagor) or permitting a short refinancing (a payoff of the Mortgage
Loan
for an amount less than the total amount contractually owed in order to
facilitate refinancing transactions by the Mortgagor not involving a sale of
the
Mortgaged Property), (ii) arranging for a repayment plan or (iii) agreeing
to a
modification in accordance with Section 9.04. In connection with such
foreclosure or other conversion or action, the Master Servicer shall, consistent
with Section 9.18, follow such practices and procedures as it shall reasonably
determine to be in the best interests of the Trust Fund and the
Certificateholders and which shall be consistent with its customary practices
in
performing its general mortgage servicing activities; provided that the Master
Servicer shall not be liable in any respect hereunder if the Master Servicer
is
acting in connection with any such foreclosure or other conversion or action
in
a manner that is consistent with the provisions of this Agreement. Neither
the
Master Servicer, nor any Servicer, shall be required to expend its own funds
or
incur other reimbursable charges in connection with any foreclosure, or
attempted foreclosure which is not completed, or toward the correction of any
default on a related senior mortgage loan, or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan to the
Certificateholders after reimbursement to itself for such expenses or charges
and (ii) that such expenses and charges will be recoverable to it through
Liquidation Proceeds or Insurance Proceeds (as provided in Section
4.02).
(b) Notwithstanding
the foregoing provisions of this Section 9.20 or any other provision of this
Agreement, with respect to any Mortgage Loan as to which the Master Servicer
has
received actual notice of, or has actual knowledge of, the presence of any
toxic
or hazardous substance on the related Mortgaged Property, the Master Servicer
shall not, on behalf of the Trustee, either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, or (ii)
otherwise acquire possession of, or take any other action with respect to,
such
Mortgaged Property, if, as a result of any such action, the Trustee, the Trust
Fund or the Certificateholders would be considered to hold title to, to be
a
“mortgagee-in-possession” of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
143
from
time to time, or any comparable law, unless the
Master Servicer has obtained the prior written consent of the NIMS
Insurer.
Section
9.21 Compensation
to the Master Servicer.
The
Master Servicer shall be entitled to withdraw from the Collection Account,
subject to Section 5.05, the Master Servicing Fee to the extent permitted by
Section 4.02. Servicing compensation in the form of assumption fees, if any,
late payment charges, as collected, if any, or otherwise (but not including
any
Prepayment Premium) shall be retained by the Master Servicer (or the applicable
Servicer) and shall not be deposited in the Collection Account. If the Master
Servicer does not retain or withdraw the Master Servicing Fee from the
Collection Account as provided herein, the Master Servicer shall be entitled
to
direct the Trustee to pay the Master Servicing Fee to such Master Servicer
by
withdrawal from the Certificate Account to the extent that payments have been
received with respect to the applicable Mortgage Loan. The Master Servicer
shall
be required to pay all expenses incurred by it in connection with its activities
hereunder and shall not be entitled to reimbursement therefor except as provided
in this Agreement. Pursuant to Section 4.01(e), all income and gain realized
from any investment of funds in the Collection Account shall be for the benefit
of the Master Servicer as compensation. The provisions of this Section 9.21
are
subject to the provisions of Section 6.14.
Section
9.22 REO
Property.
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall use its reasonable best efforts to sell, or cause the applicable Servicer,
to the extent provided in the related Servicing Agreement, to sell any REO
Property as expeditiously as possible and in accordance with the provisions
of
this Agreement and such Servicing Agreement, as applicable, but in all events
within the time period, and subject to the conditions set forth in Article
X
hereof. Pursuant to its efforts to sell such REO Property, the Master Servicer
shall protect and conserve, or cause the applicable Servicer to protect and
conserve, such REO Property in the manner and to such extent required by the
related Servicing Agreement, subject to Article X hereof.
(b) The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from the Servicer, in connection with the operation
of any REO Property in the Collection Account.
(c) The
Master Servicer and the applicable Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Master Servicing
Fees or Servicing Fees from Liquidation Proceeds received in connection with
the
final disposition of such REO Property; provided, that (without limitation
of
any other right of reimbursement that the Master Servicer or any Servicer shall
have hereunder) any such unreimbursed Advances as well as any unpaid net Master
Servicing Fees or Servicing Fees may be reimbursed or paid, as the case may
be,
prior to final disposition, out of any net rental income or other net amounts
derived from such REO Property.
144
(d) The
Liquidation Proceeds from the final disposition of the REO Property, net of
any
payment to the Master Servicer and the applicable Servicer as provided above,
shall be deposited in the Collection Account on or prior to the Determination
Date in the month following receipt thereof (and the Master Servicer shall
provide written notice to the Trustee upon such deposit) and be remitted by
wire
transfer in immediately available funds to the Trustee for deposit into the
Certificate Account on the next succeeding Deposit Date.
Section
9.23 Notice
to the Sponsor, the Depositor and the Trustee.
(a) The
Master Servicer shall promptly notify the Trustee, the Sponsor and the Depositor
of any legal proceedings pending against the Master Servicer of the type
described in Item 1117 (§ 229.1117) of Regulation AB.
(b) On
or
before March 1st of each year, the Depositor shall distribute the information
in
Exhibit S to the Master Servicer. If the Master Servicer shall become at any
time an affiliate of any of the parties listed on Exhibit S hereto or any of
their affiliates who have been identified to the Master Servicer in writing,
the
Master Servicer shall notify the Trustee, the Sponsor and the Depositor of
such
affiliation by March 15 of each year (but only to the extent that the Master
Servicer has not previously notified the Trustee, the Sponsor or the Depositor
of such affiliation.)
(c) Not
later
than four Business Days prior to the Distribution Date of each month, the Master
Servicer shall provide to the Trustee, the Sponsor and the Depositor notice
of
the occurrence of any material modifications, extensions or waivers of terms,
fees, penalties or payments relating to the Mortgage Loans during the related
Collection Period or that have cumulatively become material over time (Item
1121(a)(11) of Regulation AB) along with all information, data, and materials
related thereto as may be required to be included in the related Distribution
Report on Form 10-D, in each case solely as reported to the Master Servicer
by
the applicable Servicer. The parties to this Agreement acknowledge that the
performance by the Master Servicer of its duties under this Section 9.23(c)
related to the timely preparation and delivery of such information is contingent
upon each applicable Servicer strictly observing all requirements and deadlines
in the performance of their duties under their related Servicing Agreements.
The
Master Servicer shall have no liability for any loss, expense, damage or claim
arising out of or with respect to any failure to properly prepare and/or timely
deliver all such information where such failure results from the Master
Servicer’s inability or failure to obtain or receive, on a timely basis, any
information from any Servicer needed to prepare or deliver such information,
which failure does not result from the Master Servicer’s own negligence, bad
faith or willful misconduct.
(d) In
the
event of the appointment of any NIMS Insurer, the Depositor or Seller shall
promptly notify the Master Servicer and the Trustee of such appointment.
Section
9.24 Reports
to the Trustee.
(a) Not
later
than 30 days after each Distribution Date, the Master Servicer shall, upon
request, forward to the Trustee and any NIMS Insurer a statement, deemed to
have
been
145
certified
by a Servicing Officer, setting forth the
status of the Collection Account maintained by the Master Servicer as of the
close of business on the related Distribution Date, indicating that all
distributions required by this Agreement to be made by the Master Servicer
have
been made (or if any required distribution has not been made by the Master
Servicer, specifying the nature and status thereof) and showing, for the period
covered by such statement, the aggregate of deposits into and withdrawals from
the Collection Account maintained by the Master Servicer. Copies of such
statement shall be provided by the Master Servicer, upon request, to the
Depositor, Attention: Contract Finance, and to any Certificateholders (or by
the
Trustee at the Master Servicer’s expense if the Master Servicer shall fail to
provide such copies to the Certificateholders (unless (i) the Master Servicer
shall have failed to provide the Trustee with such statement or (ii) the Trustee
shall be unaware of the Master Servicer’s failure to provide such
statement)).
(b) Not
later
than two Business Days following each Distribution Date, the Master Servicer
shall deliver to one Person designated by the Depositor, in a format consistent
with other electronic loan level reporting supplied by the Master Servicer
in
connection with similar transactions, “loan level” information with respect to
the Mortgage Loans as of the related Determination Date, to the extent that
such
information has been provided to the Master Servicer by the Servicers or by
the
Depositor.
(c) All
information, reports and statements prepared by the Master Servicer under this
Agreement shall be based upon information supplied to the Master Servicer by
the
Servicers without independent verification thereof and the Master Servicer
shall
be entitled to rely on such information.
Section
9.25 Assessment
of Compliance and Attestation Reports.
(a) Assessment
of Compliance
(i) On
or
before March 15 of each calendar year in which the Depositor is required to
file
reports with respect to the Trust Fund in accordance with the Exchange Act
and
the rules and regulations of the Commission, beginning with March 15, 2008,
the
Master Servicer, the Paying Agent (if other than the Trustee) and the Trustee,
each at its own expense, shall furnish, and each such party shall cause any
Servicing Function Participant engaged by it to furnish, each at its own
expense, to the Sponsor, the Depositor, the Master Servicer and the Trustee,
a
report on an assessment of compliance with the Relevant Servicing Criteria
that
contains (A) a statement by such party of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
party
used the Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for the fiscal year covered by the Form 10-K required to
be
filed pursuant to Section 6.20(d), 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. The Master Servicer shall furnish to the Trustee a copy of
each assessment of compliance provided to
146
it
by the Custodian pursuant to the Custodial Agreement
and by each Servicer pursuant to the related Servicing Agreement, to the extent
that the Trustee is not entitled to receive such assessments pursuant to each
such applicable agreement.
(ii) When
the
Master Servicer, 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 and the Master Servicer, such parties will also at such time
include the assessment (and attestation pursuant to subsection (b) of this
Section 9.25) of each Servicing Function Participant engaged by it and shall
indicate to the Trustee what Relevant Servicing Criteria will be addressed
in
any such reports prepared by any such Servicing Function
Participant.
(iii) Promptly
after receipt of each report on assessment of compliance, the 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 Servicing Criteria) for each party as set forth on Exhibit R and on
any
similar exhibit set forth in the applicable Servicing Agreement in respect
of
any Servicer, and the applicable Custodial Agreement in respect of any
Custodian, 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 R 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) On
or
before March 15th of each calendar year in which the Depositor is required
to
file reports with respect to the Trust Fund in accordance with the Exchange
Act
and the rules and regulations of the Commission, beginning with March 15, 2008,
the Master Servicer, 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 Master Servicer, Paying Agent or 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, the Master Servicer and the
Trustee, as applicable, 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.
147
(ii) Promptly
after receipt of such report from the Master Servicer, 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 9.25 is coupled with an attestation meeting the requirements of
this Section and notify the Depositor of any exceptions.
(c) The
Trustee’s, the Paying Agent’s and the Master Servicer’s obligation to provide
assessments of compliance and attestations under this Section 9.25 shall
terminate upon the filing of a Form 15 suspension notice on behalf of the Trust
Fund. After the occurrence of such event, and provided the Depositor is not
otherwise provided with such reports or copies of such reports, the Trustee,
the
Paying Agent and the Master Servicer shall be obligated to provide a copy of
such reports, by March 15 of each year, to the Depositor.
Section
9.26 Annual
Statement of Compliance with Applicable Servicing Criteria.
The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor
and
the Trustee on or before March 15 of each year, commencing in March 2008, an
Officer’s Certificate stating, as to the signer thereof, that (A) a review of
such party’s activities during the preceding calendar year or portion thereof
and of such party’s performance under this Agreement, or such other applicable
agreement in the case of an Additional Servicer, has been made under such
officer’s supervision and (B) to the best of such officer’s knowledge, based on
such review, such party has fulfilled all its obligations under this Agreement,
or such other applicable agreement in the case of an Additional Servicer, in
all
material respects throughout such year or portion thereof, or, if there has
been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status
thereof.
Section
9.27 Merger
or Consolidation.
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to
the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or resulting
Person to the Master Servicer shall be a Person that shall be qualified and
approved to service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac and shall
have
a net worth of not less than $15,000,000. Notwithstanding the foregoing, as
a
condition to the succession to the Master Servicer under this Agreement by
any
Person (i) into which the Master Servicer may be merged or consolidated, or
(ii)
which may be appointed as a successor to the Master Servicer, the Master
Servicer shall notify 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 Depositor in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
necessary for the Trustee to accurately and timely report, pursuant to Section
6.20, 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).
148
Section
9.28 Resignation
of Master Servicer.
Except
as
otherwise provided in Sections 9.27 and 9.29 hereof, the Master Servicer shall
not resign from the obligations and duties hereby imposed on it unless it or
the
Trustee determines that the Master Servicer’s duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it and cannot be cured.
Any such determination permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee and the NIMS Insurer. No such resignation shall become
effective until a period of time not to exceed 90 days after the Trustee and
the
NIMS Insurer receives written notice thereof from the Master Servicer and until
the Trustee shall have assumed, or a successor master servicer shall have been
appointed by the Trustee, such successor master servicer being acceptable to
the
NIMS Insurer, and until such successor shall have assumed, the Master Servicer’s
responsibilities and obligations under this Agreement. Notice of such
resignation shall be given promptly by the Master Servicer and the Depositor
to
the Trustee.
Section
9.29 Assignment
or Delegation of Duties by the Master Servicer.
Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any other Person to perform
any
of the duties, covenants or obligations to be performed by the Master Servicer
hereunder; provided, however, that the Master Servicer shall have the right
without the prior written consent of the Trustee or the Depositor to delegate
or
assign to or subcontract with or authorize or appoint an Affiliate of the Master
Servicer to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Master Servicer hereunder. In no case, however,
shall any such delegation, subcontracting or assignment to an Affiliate of
the
Master Servicer relieve the Master Servicer of any liability hereunder. Notice
of such permitted assignment shall be given promptly by the Master Servicer
to
the Depositor and the Trustee. If, pursuant to any provision hereof, the duties
of the Master Servicer are transferred to a successor master servicer, the
entire amount of the Master Servicing Fees and other compensation payable to
the
Master Servicer pursuant hereto, including any amounts payable to or permitted
to be retained or withdrawn by the Master Servicer pursuant to Section 9.21
hereof, shall thereafter be payable to such successor master
servicer.
Notwithstanding
the foregoing, for so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Master Servicer
shall not utilize any Subcontractor for the performance of its duties hereunder
if such Subcontractor would be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB without (a) giving notice to the
Trustee and the Depositor and (b) requiring any such Subcontractor to provide
to
the Master Servicer an attestation report as provided for in Section 9.25(b)
and
an assessment of compliance as provided in Section 9.25(a), which reports the
Master Servicer shall include in its attestation report and assessment of
compliance.
149
Section
9.30 Limitation
on Liability of the Master Servicer and Others.
(a) The
Master Servicer undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to act
or
its own willful misconduct; provided, however, that the duties and obligations
of the Master Servicer shall be determined solely by the express provisions
of
this Agreement, the Master Servicer shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this
Agreement; no implied covenants or obligations shall be read into this Agreement
against the Master Servicer and, in absence of bad faith on the part of the
Master Servicer, the Master Servicer may conclusively rely, as to the truth
of
the statements and the correctness of the opinions expressed therein, upon
any
certificates or opinions furnished to the Master Servicer and conforming to
the
requirements of this Agreement.
(c) None
of
the Master Servicer, the Seller, any NIMS Insurer or the Depositor or any of
the
directors, officers, employees or agents of any of them shall be under any
liability to the Trustee or the Certificateholders for any action taken or
for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer, the Seller, any NIMS Insurer or the
Depositor or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its obligations
and duties under this Agreement. The Master Servicer, the Seller, any NIMS
Insurer and the Depositor and any director, officer, employee or agent of any
of
them shall be entitled to indemnification by the Trust Fund and will be held
harmless against any loss, liability or expense incurred in connection with
any
legal action relating to this Agreement or the Certificates other than any
loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of his or its duties hereunder or by reason of
reckless disregard of his or its obligations and duties hereunder. The Master
Servicer, the Seller, any NIMS Insurer and the Depositor and any director,
officer, employee or agent of any of them may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Master Servicer shall be under no obligation
to appear in, prosecute or defend any legal action that is not incidental to
its
duties to master service the Mortgage Loans in accordance with this Agreement
and that in its opinion may involve it in any expenses or liability; provided,
however, that the Master Servicer may in its sole discretion undertake any
such
action that it may deem necessary or desirable in respect to this Agreement
and
the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities of the Trust Fund and the Master Servicer shall be entitled to
be
reimbursed therefor out of the Collection Account it maintains as provided
by
Section 4.02.
Section
9.31 Indemnification;
Third Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Sponsor, the Certificate
Registrar, the Paying Agent and the Trustee (and each of their respective
directors, officers,
150
employees
and agents) and hold each of them harmless
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other costs, liability, fees
and expenses that the Depositor, the Sponsor, the Certificate Registrar, the
Paying Agent or the Trustee may sustain arising out of or based upon (a) any
material breach by the Master Servicer of any of its obligations hereunder,
including particularly its obligations to provide any report under Section
9.25(a), Section 9.25(b) or Section 9.26 or any information, data or materials
required to be included in any Exchange Act report, provided, however, that
in
no event shall the Master Servicer be liable for any special, consequential,
indirect or punitive damages pursuant to this Section 9.31, even if advised
of
the possibility of such damages, (b) any material misstatement or omission
on
any information, data, or materials provided by the Master Servicer, or (c)
the
negligence, bad faith or willful misconduct of the Master Servicer in connection
with its performance hereunder. The Depositor, the Sponsor, the Certificate
Registrar, the Paying Agent and the Trustee shall immediately notify the Master
Servicer if a claim is made by a third party with respect to this Agreement
or
the Mortgage Loans entitling the Depositor, the Sponsor or the Trustee to
indemnification hereunder, whereupon the Master Servicer shall assume the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or them in respect of such claim. This
indemnification shall survive the termination of this Agreement or the
termination of the Master Servicer as a party to this Agreement.
Section
9.32 Special
Servicing of Delinquent Mortgage Loans.
If
permitted under the terms of any Servicing Agreement, the Seller may appoint,
pursuant to the terms of such Servicing Agreement and with the written consent
of the Depositor, the Master Servicer, the Trustee and the NIMS Insurer, a
Special Servicer to special service any Distressed Mortgage Loans. Any
applicable Termination Fee related to the termination of the Servicer and the
appointment of any Special Servicer shall be paid by the Seller. Any fees paid
to any such Special Servicer shall not exceed the applicable Servicing Fee
Rate.
Section
9.33 Allocation
to Related Mortgage Pool
Payments
described in this Article IX made from the Trust Fund shall be allocated and
limited to collections or other recoveries on the related Mortgage Pool or
Mortgage Pools and shall be accounted for in such manner.
ARTICLE
X.
REMIC
ADMINISTRATION
Section
10.01 REMIC
Administration.
(a) REMIC
elections as set forth in the Preliminary Statement and this Section 10.01
shall
be made on Forms 1066 or other appropriate federal tax or information return
for
the taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement and this Section
10.01. For purposes of such designations, the interest rate of any
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regular
interest that is computed by taking into account
the weighted average of the Net Mortgage Rates of the Mortgage Loans shall
be
reduced to take into account any expense paid by the Trust to the extent that
(i) such expense was not taken into account in computing the Net Mortgage Rate
of any Mortgage Loan or any Net Funds Cap, (ii) such expense does not constitute
an “unanticipated expense” of a REMIC within the meaning of Treasury Regulation
Section 1.860G-1(b)(3)(ii) and (iii) the amount of such expense was not taken
into account in computing the interest rate of a more junior Class of regular
interests.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code. The latest possible maturity date
for
purposes of Treasury Regulation 1.860G-1(a)(4) will be the Latest Possible
Maturity Date.
(c) The
Trustee shall represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto. The Trustee shall pay any and all tax related
expenses (not including taxes) of each REMIC and Grantor Trust, including but
not limited to any professional fees or expenses related to audits or any
administrative or judicial proceedings with respect to such REMIC or Grantor
Trust 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 from the Certificate
Account of the expenses to the extent (x) provided in clause (i) above and
(y)
with respect to each REMIC, such expenses are “unanticipated expenses” within
the meaning of Treasury Regulation Section 1.860G-1(b)(3)(ii). Any reimbursement
described in the preceding sentence shall be allocated and limited to
collections or other recoveries on the related Mortgage Pool and shall be
accounted for in such manner.
(d) The
Trustee shall prepare, the Trustee shall sign, and the Trustee will file, all
of
each REMIC’s federal and state tax and information returns as such REMIC’s
direct representative. The Trustee shall prepare, sign and file all of the
tax
or information returns in respect of each Grantor Trust. The Trustee shall
comply with such requirement by filing Form 1041. The expenses of preparing
and
filing such returns shall be borne by the Trustee.
(e) The
Trustee or its designee shall perform on behalf of the Trust Fund and each
REMIC
and Grantor Trust all reporting and other tax compliance duties that are the
responsibility of the Trust Fund or such REMIC or Grantor Trust 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
pursuant to Treasury Regulation 1.860E-2(a)(5) and any person designated in
Section 860E(e)(3) of the Code and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC
Provisions.
(f) The
Trustee, the Master Servicer and the Holders of Certificates shall take any
action, within their respective control and scope of their duties, or cause
any
REMIC to take any
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action
necessary to create or maintain the status of any
REMIC as a REMIC under the REMIC Provisions and shall assist each other as
necessary to create or maintain such status. Neither the Trustee, the Master
Servicer nor the Holder of any Residual Certificate shall knowingly take any
action, cause any REMIC to take any action or fail to take (or fail to cause
to
be taken) any action, within their respective control and scope of their duties,
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could result in an Adverse REMIC Event unless the Trustee, the NIMS Insurer
and
the Master Servicer have received an Opinion of Counsel (at the expense of
the
party seeking to take such action) to the effect that the contemplated action
will not result in an Adverse REMIC Event. 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,
the NIMS Insurer, the Master Servicer or their respective designees, in writing,
with respect to whether such action could cause an Adverse REMIC Event to occur
with respect to any REMIC, and no such Person shall take any such action or
cause any REMIC to take any such action as to which the Trustee, the NIMS
Insurer or the Master Servicer has advised it in writing that an Adverse REMIC
Event could occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
the related REMIC by federal or state governmental authorities. To the extent
that such taxes are 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 any such REMIC or,
if
no such amounts are available, out of other amounts held in the Collection
Account, and shall reduce amounts otherwise payable to holders of regular
interests in any such REMIC, as the case may be.
(h) The
Trustee shall, for federal income tax purposes, maintain books and records
with
respect to each REMIC on a calendar year and on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement with respect to Qualifying Substitute
Mortgage Loans.
(j) Neither
the Trustee nor the Master Servicer shall enter into any arrangement by which
any REMIC will receive a fee or other compensation for services.
(k) Upon
the
request of any Rating Agency or any NIMS Insurer, the Trustee shall deliver
an
Officer’s Certificate to the Rating Agency and to the NIMS Insurer stating,
without regard to any actions taken by any party other than the Trustee, the
Trustee’s compliance with provisions of this Section 10.01.
(l) The
Class
AP Certificates shall be neither regular interests nor residual interests in
any
REMIC created hereunder. It is the intention of the parties hereto that the
segregated pool of assets consisting of any collections of Prepayment Premiums
related to the Mortgage Loans distributable to the Class AP Certificates and
the
related Class P Reserve Fund shall constitute a grantor trust for federal income
tax purposes. The Trustee, by its execution and delivery hereof, acknowledges
the assignment to it of the rights to receive such Prepayment Premiums and
such
Class P Reserve Fund and declares that it holds and will hold such assets in
trust for the exclusive use and benefit of all present and future Holders of
the
Class AP Certificates. The
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rights
of Holders of the Class AP Certificates to
receive distributions from the proceeds of such Prepayment Premiums and such
Class P Reserve Fund, and all ownership interests of such Holders in and to
such
distributions, shall be as set forth in this Agreement.
(m) The
SWAP
REMIC shall consist of all of the assets of the Trust Fund relating to the
Mortgage Pools other than (i) the Lower Tier Interests, (ii) the Basis Risk
Reserve Fund, (iii) the X Component Account, (iv) the Interest Rate Cap
Agreement and the Interest Rate Cap Account, (v) the rights to receive
Prepayment Premiums distributable to the Class P Certificates and the Class
P
Reserve Funds, (vi) the Swap Agreement and the Supplemental Interest Trust
and
(vii) any of the grantor trusts described in Section 10.01 hereof. The SWAP
REMIC Regular Interests shall be designated as the regular interests in the
SWAP
REMIC, and the Class SW-R Interest shall be designated as the sole class of
residual interest in the SWAP REMIC. Each of the SWAP REMIC Regular Interests
shall have the characteristics set forth in the Preliminary
Statement.
The
assets of REMIC 1 shall be the SWAP REMIC Regular Interests. The REMIC 1 Regular
Interests shall be designated as the regular interests in REMIC 1, and the
Class
LT1-R Interest shall be designated as the sole class of residual interest in
REMIC 1. Each of the REMIC 1 Regular Interests shall have the characteristics
set forth in the Preliminary Statement.
The
assets of REMIC 2 shall be the REMIC 1 Regular Interests. The REMIC 2 Regular
Interests shall be designated as the regular interests in REMIC 2 and the Class
LT2-R Interest shall be designated as the sole class of residual interest in
REMIC 2. Each of the REMIC 2 Regular Interests shall have the characteristics
set forth in the Preliminary Statement.
The
assets of REMIC 3 shall be the REMIC 2 Regular Interests. The REMIC 3 Regular
Interests shall be designated as the regular interests in REMIC 3 and the
Residual Interest shall be designated as the sole class of residual interest
in
REMIC 3. For federal income tax purposes, the interest rate on each REMIC 3
Regular Interest (other than the Uncertificated Class X Interest, the Class
LT3-AX Interest and the Class LT3-IO Interest) shall be subject to a cap equal
to the REMIC Cap.
The
beneficial ownership of the Class SW-R Interest, the Class LT1-R Interest,
the
Class LT2-R Interest and the Residual Interest shall be represented by the
Class
R Certificate. None of the Class SW-R Interest, the Class LT1-R Interest, the
Class LT2-R Interest and the Residual Interest shall have a principal balance
or
bear interest.
(n) It
is
intended that the rights of each Class of Offered Certificates to receive
payments in respect of Excess Interest shall be treated as a right in interest
rate cap contracts written by the holders of the Class X Certificates in favor
of the holders of each Class of Offered Certificates and such shall be accounted
for as property held separate and apart from the regular interests in REMIC
3
held by the holders of the Offered Certificates. This provision is intended
to
satisfy the requirements of Treasury Regulations Section 1.860G-2(i) for the
treatment of property rights coupled with REMIC interests to be separately
respected and shall be interpreted consistently with such regulation. On each
Distribution Date, to the extent that any of the Offered Certificates receive
payments in respect of Excess Interest, such amounts, to the extent not derived
from payments on the Interest Rate Cap Agreement, from payments on the Swap
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Agreement,
from payments in respect of Class I
Shortfalls or from payments in respect of Class X Shortfalls as set forth in
Section 10.01(p), will be treated as distributed by REMIC 3 to the Class X
Certificates in respect of the Uncertificated Class X Interest pro
rata
and then
paid to the relevant Class of Certificates pursuant to the related interest
cap
agreement. The Trustee is hereby directed to perform its duties and obligations
in accordance with this Section 10.01(n).
It
is
intended that the beneficial owners of the Offered Certificates shall be treated
as having entered into a notional principal contract with respect to the
beneficial owners of the Class X Certificates. Pursuant to each such notional
principal contract, all beneficial owners of the Offered Certificates shall
be
treated as having agreed to pay, on each Distribution Date, to the beneficial
owners of the Class X Certificates an aggregate amount equal to the excess,
if
any, of (i) the amount payable on such Distribution Date on the Related REMIC
3
Interest corresponding to such Class of Offered Certificates over (ii) the
amount payable on such Class of Offered Certificates on such Distribution Date
(such excess, a “Class I Shortfall”). A Class I Shortfall shall be allocated to
(i) each Class of Offered Certificates (other than the Class AX Certificates)
to
the extent that interest accrued on such Class for the related Accrual Period
at
the Certificate Interest Rate for such Class, computed by substituting “REMIC
Pass-Through Rate” for the applicable Net Funds Cap set forth in the definition
thereof, exceeds the amount of interest payable on such Class for the related
Accrual Period and (ii) the Class AX Certificates to the extent that interest
accrued on the Class LT3-AX Interest for the related Accrual Period exceeds
the
amount of interest payable on such Class of Certificates. A Class I Shortfall
payable from principal collections shall be allocated to the most subordinate
Class of Offered Certificates with an outstanding principal balance to the
extent of such balance. In addition, pursuant to such notional principal
contract, the beneficial owner of the Class X Certificates shall be treated
as
having agreed to make payments in respect of Excess Interest to the beneficial
holders of the Offered Certificates in accordance with the terms of this
Agreement. Any payments to the Offered Certificates in light of the foregoing
shall not be payments with respect to a “regular interest” in a REMIC within the
meaning of Code Section 860G(a)(1). However, any payment by beneficial owners
of
Offered Certificates of a Class I Shortfall shall be treated for tax purposes
as
having been received by the beneficial owners of such Certificates in respect
of
their interests in REMIC 3 and as having been paid by such beneficial owners
to
the Class X Certificates pursuant to the notional principal contract. Thus,
each
Offered Certificate and each Class X Certificate shall be treated as
representing not only ownership of regular interests in REMIC 3, but also
ownership of an interest in (and obligations with respect to) a notional
principal contract.
(o) The
parties hereto intend that the Uncertificated Class X Interest, the
uncertificated Class LT3-IO Interest, the Interest Rate Cap Agreement and the
Interest Rate Cap Account, the Swap Agreement, the Supplemental Interest Trust,
the right to receive payments in respect of Class I Shortfalls from the holders
of the Offered Certificates, the Basis Risk Reserve Fund, the right to receive
payments in respect of Class X Shortfalls as set forth in Section 10.01(p)
and
the obligation of the holders of the Class X Certificates to pay amounts of
Excess Interest to the holders of the Offered Certificates shall be treated
as a
“grantor trust” under the Code, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the Trustee
shall (i) furnish or cause to be furnished to the holders of the Class X
Certificates information regarding their allocable share, if any, of the income
with respect to such grantor trust, (ii) file or cause to be filed with the
Internal Revenue Service Form 1041 (together with any necessary attachments)
and
such other forms as may be applicable and
155
(iii)
comply with such information reporting obligations
with respect to payments from such grantor trust to the holders of Offered
Certificates as may be applicable under the Code. The Trustee is hereby directed
to perform its duties and obligations in accordance with this Section
10.01(o).
The
parties intend that all amounts paid to the Swap Counterparty under the Swap
Agreement shall be deemed for federal income tax purposes to be paid by the
Class X Certificates first, out of funds deemed received in respect of the
Class
LT3-IO Interest, second, out of funds deemed received in respect of the
Uncertificated Class X Interest and third, out of funds deemed received in
respect of Class I Shortfalls described in Section 10.01(n), and the provisions
hereof shall be interpreted consistently with this intention.
The
Supplemental Interest Trust shall be an “outside reserve fund” for federal
income tax purposes and not an asset of any REMIC. Furthermore, the Holders
of
the Class X Certificates shall be the beneficial owners of the Supplemental
Interest Trust for all federal income tax purposes, and shall be taxable on
all
income earned thereon.
(p) The
excess, if any, of amounts payable with respect to the REMIC regular interests
held by REMIC 2 over the amounts payable with respect to the REMIC 2 Regular
Interests with respect to each Accrual Period shall, solely for purposes of
the
REMIC Provisions, be deemed earned by the Master Servicer as an additional
fee,
which amount shall be deemed paid by the Master Servicer to the holders of
the
Class X Certificates. It is intended that the rights of the holders of the
Class
X Certificates to receive such deemed payments (“Class X Shortfalls”) shall be
treated as rights in respect of an interest rate cap contract written by the
Master Servicer in favor of the holders of the Class X Certificates and shall
be
accounted for as property separate and apart from any REMIC regular interest
represented by the Class X Certificates. This provision is intended to comply
with the requirements of Treasury Regulations Section 1.860G-2(i) for the
treatment of property rights coupled with regular interests to be separately
respected and shall be interpreted consistently with such regulation. The
holders of the Class X Certificates agree by their acceptance of such
Certificates, that they will take tax reporting positions that allocate no
more
than a nominal value to the right to receive deemed payments in respect of
Class
X Shortfalls. The Master Servicer and Trustee shall agree to take tax reporting
positions consistent with the allocations by the holders of the Class X
Certificates of no more than a nominal value to the right to receive deemed
payments in respect of Class X Shortfalls. For information reporting purposes,
it will be assumed that such rights have no value. Each payment deemed made
to
the Class X Certificates in respect of Class X Shortfalls shall be treated
for
federal income tax purposes or having been paid to the Master Servicer as an
additional servicing fee and then paid by the Master Servicer to the Holders
of
the Class X Certificates. The Trustee and Master Servicer agree and each holder
or beneficial owner of a Class X Certificate agrees, by virtue of its
acquisition of such Certificate or beneficial interest, to adopt tax reporting
positions consistent with the payments deemed made to the Class X Certificates
in respect of Class X Shortfalls as payments in respect of interest rate cap
agreements written by the Master Servicer. The Trustee is hereby directed to
perform its duties and obligations in accordance with this Section
10.01(p).
(q) Payments
in the nature of expenses, reimbursements and indemnifications made from the
Trust Fund shall be allocated and limited to collections or other recoveries
on
the
156
related
Mortgage Pool or Mortgage Pools (if applicable)
and shall be accounted for in such manner.
(r) The
Trustee shall treat the X Component Account as an outside reserve fund within
the meaning of Treasury Regulation 1.860G-2(h) that is owned by the Holder
of
the Class C Certificates and that is not an asset of any REMIC.
(s) (I)
The SWAP REMIC:
On each
Distribution Date, the Trustee shall first pay or charge as an expense of the
SWAP REMIC all expenses of the Trust Fund for such Distribution Date, other
than
any Net Swap Payment or Swap Termination Payment required to be made from the
Trust Fund.
On
each
Distribution Date the Trustee shall distribute the aggregate Interest Remittance
Amount (net of expenses described in the preceding paragraph) with respect
to
each of the SWAP REMIC Regular Interests based on the interest rates for such
interests set forth in the Preliminary Statement hereto.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount, first to the Class SW-Z Interest until its principal balance
is reduced to zero, and then sequentially, to each of the other SWAP REMIC
Regular Interests in ascending order of their numerical Class designation,
and,
with respect to each pair of Classes having the same numerical designation,
in
equal amounts to each such Class, until the principal balance of each such
Class
is reduced to zero. All losses on the Mortgage Loans shall be allocated among
the SWAP REMIC Regular Interests in the same manner that principal distributions
are allocated. Increases in principal amount as a result of Subsequent
Recoveries with respect to the Mortgage Loans shall be allocated among the
SWAP
REMIC Regular Interests in the reverse fashion from the manner in which losses
are allocated. Increases in principal amount as a result of Net Negative
Amortization with respect to the Mortgage Loans for any Distribution Date shall
be allocated among the SWAP REMIC Regular Interests, first to the Class SW-Z
Interest up to an amount equal to the accrued interest thereon for such
Distribution Date, and then sequentially, to the other SWAP REMIC Regular
Interests in ascending order of their numerical Class designation, and, with
respect to each pair of Classes having the same numerical designation, in equal
amounts to each such Class, up to an amount equal to the accrued interest
thereon for such Distribution Date. Any amounts remaining in the SWAP REMIC
after the aforementioned distributions shall be distributed to the Class SW-R
Interest.
(II)
REMIC 1:
All
payments received by REMIC 1 shall be paid to the REMIC 1 Regular Interests
until the principal balance of all such interests have been reduced to zero
and
any losses allocated to such interests have been reimbursed. Any excess amounts
shall be distributed to the Class LT1-R Interest.
On
each
Distribution Date,
(i) interest
shortfalls with respect to the Mortgage Loans (other than interest shortfalls
attributable to Negative Amortization) shall be allocated to the REMIC 1 Regular
Interests (other than the Class LT1-IO Interest) pro
rata
based on
interest otherwise accrued thereon;
157
(ii) the
principal balance of each REMIC 1 Regular Interest shall be increased by the
amount of interest accrued thereon (net of interest shortfalls allocated thereto
pursuant to the immediately preceding clause (i));
(iii) cash
received by REMIC 1 with respect to the SWAP REMIC Regular Interests shall
be
distributed first to the Class LT1-IO Interest in reduction of its principal
balance so that its principal balance is as close as possible to
zero.
(iv) the
remaining cash received by REMIC 1 shall be distributed to, and losses with
respect to the Mortgage Loans shall be allocated to the REMIC 1 Marker Classes
and the Class LT1-X Interest in reduction of their principal amounts as
follows:
first,
to the
Class LT1-M6 Interest in reduction of its principal balance so that its
principal balance is as close as possible to 50% of the principal balance of
its
Corresponding Class;
second,
to the
Class LT1-M5 Interest in reduction of its principal balance so that its
principal balance is as close as possible to 50% of the principal balance of
its
Corresponding Class;
third,
to the
Class LT1-M4 Interest in reduction of its principal balance so that its
principal balance is as close as possible to 50% of the principal balance of
its
Corresponding Class;
fourth,
to the
Class LT1-M3 Interest in reduction of its principal balance so that its
principal balance is as close as possible to 50% of the principal balance of
its
Corresponding Class;
fifth,
to the
Class LT1-M2 Interest in reduction of its principal balance so that its
principal balance is as close as possible to 50% of the principal balance of
its
Corresponding Class;
sixth,
to the
Class LT1-M1 Interest in reduction of its principal balance so that its
principal balance is as close as possible to 50% of the principal balance of
its
Corresponding Class;
seventh,
to the
Class LT1-A3 Interest in reduction of its principal balance so that its
principal balance is as close as possible to 50% of the principal balance of
its
Corresponding Class;
eighth,
to the
Class LT1-A2 Interest in reduction of its principal balance so that its
principal balance is as close as possible to 50% of the principal balance of
its
Corresponding Class;
ninth,
to the
Class LT1-A1 Interest in reduction of its principal balance so that its
principal balance is as close as possible to 50% of the principal balance of
its
Corresponding Class; and
158
tenth,
to the
Class LT1-X Interest in reduction of its principal balance so that its principal
balance is as close as possible to the sum of (x) 50% of the aggregate Scheduled
Principal Balance of the Mortgage Loans and (y) 50% of the Overcollateralization
Amount.
If
on any
Distribution Date there is an increase in the Certificate Principal Amount
of
any Offered Certificate as a result of the proviso in the definition of
Certificate Principal Amount, then there shall be a corresponding increase
in
the principal amount of the REMIC 1 Regular Interests (other than the Class
LT1-IO Interest) allocated as follows:
first,
to each
of the REMIC 1 Marker Classes so that the principal balance of each such
interest is as close as possible to 50% of the principal balance of its
Corresponding Class; and
second,
to the
Class LT1-X Interest so that the principal balance of such interest is as close
as possible to the sum of (x) 50% of the aggregate Scheduled Principal Balance
of the Mortgage Loans and (y) 50% of the Overcollateralization
Amount.
(III)
REMIC 2:
All
payments received by REMIC 2 with respect to the REMIC 1 Regular Interests
shall
be paid to the REMIC 2 Regular Interests until the principal balance of all
such
interests have been reduced to zero and any losses allocated to such interests
have been reimbursed. Any excess amounts shall be distributed to the Class
LT2-R
Interest.
On
each
Distribution Date,
(i) interest
shortfalls with respect to the Mortgage Loans (other than interest shortfalls
attributable to Negative Amortization) shall be allocated to the REMIC 2 Regular
Interests (other than the Class LT2-IO Interest) pro
rata
based on
interest otherwise accrued thereon;
(ii) the
principal balance of each REMIC 2 Regular Interest shall be increased by the
amount of interest accrued thereon (net of interest shortfalls allocated thereto
pursuant to the immediately preceding clause (i));
(iii) cash
received by REMIC 2 with respect to the REMIC 1 Regular Interests shall be
distributed first to the Class LT2-IO Interest in reduction of its principal
balance so that its principal balance is as close as possible to zero. Any
remaining cash shall be distributed to, and losses with respect to the Mortgage
Loans shall be allocated, first, to each of the other classes of REMIC 2 Regular
Interests (other than the Class LT2-X Interest), in reduction of its principal
balance so that its principal balance is a close as possible to the principal
balance of its Related Certificates, and second, to the Class LT2-X Interest
in
reduction of its principal balance so that its principal balance is as close
as
possible to the Overcollateralization Amount.
If
on any
Distribution Date there is an increase in the Certificate Principal Amount
of
any Offered Certificate as a result of the proviso in the definition of
Certificate Principal Amount,
159
then
there shall be a corresponding increase in the
principal amount of the REMIC 2 Regular Interests allocated as
follows:
first,
to each
of the REMIC 2 Regular Interests (other than the Class LT2-X Interest and other
than the Class LT2-IO Interest) so that the principal balance of each such
interest is as close as possible to the principal balances of its Related
Certificates; and
second,
to the
Class LT2-X Interest so that the principal balance of such interest is as close
as possible to the Overcollateralization Amount.
(t) Notwithstanding
the priority and sources of payments set forth in Article 5 hereof or otherwise,
the Trustee shall account for all distributions with respect to a Class of
Certificates in amounts that differ from those payable pursuant to the regular
interest in REMIC 3 corresponding to such Class as amounts paid or received
(as
appropriate) pursuant to the interest rate cap contracts or notional principal
contracts provided for in this Section. In no event shall any such amounts
be
treated as payments with respect to a “regular interest” in a REMIC within the
meaning of Code Section 860G(a)(1).
Section
10.02 Prohibited
Transactions and Activities.
None
of
the Depositor, the Master Servicer or the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of the REMIC holding such Mortgage Loan pursuant to
Article VII of this Agreement, (iv) a substitution pursuant to Article II of
this Agreement or (v) a repurchase of Mortgage Loans pursuant to Article II
of
this Agreement, nor acquire any assets for any REMIC, nor sell or dispose of
any
investments in the Certificate Account for gain, nor accept any contributions
to
any REMIC after the Closing Date, unless it has received an Opinion of Counsel
(at the expense of the party causing such sale, disposition, or substitution),
a
copy of which shall be provided to any NIMS Insurer, that such disposition,
acquisition, substitution, or acceptance will not (a) result in an Adverse
REMIC
Event, (b) affect the distribution of interest or principal on the Certificates,
or (c) result in the encumbrance of the assets transferred or assigned to the
Trust Fund (except pursuant to the provisions of this Agreement).
Section
10.03 Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
Upon
the
occurrence of an Adverse REMIC Event due to the negligent performance by the
Trustee of its duties and obligations set forth herein, the Trustee shall
indemnify the NIMS Insurer, the Holder of the related Residual Certificate
or
the Trust Fund, as applicable, against any and all losses, claims, damages,
liabilities or expenses (“Losses”) resulting from such negligence; provided,
however, that the Trustee shall not be liable for any such Losses attributable
to the action or inaction of the Master Servicer, the Depositor, the Class
X or
Class R Certificateholder, as applicable, nor 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,
160
however,
in no event shall the Trustee have any
liability pursuant to this Section 10.03 (1) for any action or omission that
is
taken in accordance with and in compliance with the express terms of, or which
is expressly permitted by the terms of, this Agreement or any Servicing
Agreement, (2) for any Losses other than arising out of a negligent performance
by the Trustee of its duties and obligations set forth herein, and (3) for
any
special or consequential damages to Certificateholders (in addition to payment
of principal and interest on the Certificates).
Section
10.04 REO
Property.
(a) Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not, except to the extent provided in the
applicable Servicing Agreement, knowingly permit any Servicer to, rent, lease,
or otherwise earn income on behalf of any REMIC with respect to any REO Property
which might cause an Adverse REMIC Event unless the Master Servicer has advised,
or has caused such Servicer to advise, the Trustee in writing to the effect
that, under the REMIC Provisions, such action would not result in an Adverse
REMIC Event.
(b) The
Master Servicer shall cause the applicable Servicer (to the extent provided
in
the related Servicing Agreement) to make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Master Servicer
shall, or shall cause the applicable Servicer to, dispose of any REO Property
within three years of its acquisition by the Trust Fund unless the Master
Servicer has received a grant of extension from the Internal Revenue Service
to
the effect that, under the REMIC Provisions, the REMIC may hold REO Property
for
a longer period without causing an Adverse REMIC Event. If the Master Servicer
has received such an extension, then the Master Servicer, acting on the
Trustee’s behalf hereunder, shall, or shall cause the Servicer to, continue to
attempt to sell the REO Property for its fair market value for such period
longer than three years as such extension permits (the “Extended Period”). If
the Master Servicer has not received such an extension and the Master Servicer
or the applicable Servicer, acting on behalf of the Trustee hereunder, is unable
to sell the REO Property within 33 months after its acquisition by the Trust
Fund or if the Master Servicer has received such an extension, and the Master
Servicer or such Servicer is unable to sell the REO Property within the period
ending three months before the close of the Extended Period, the Master Servicer
shall cause such Servicer, before the end of the three year period or the
Extended Period, as applicable, to (i) purchase such REO Property at a price
equal to the REO Property’s fair market value or (ii) auction the REO Property
to the highest bidder (which may be such Servicer) in an auction reasonably
designed to produce a fair price prior to the expiration of the three year
period or the Extended Period, as the case may be.
Section
10.05 WHFIT
Provisions.
(a) Each
of
the grantor trusts identified in Section 10.01(l) is a WHFIT that is a WHMT.
The
Trustee will report as required under the WHFIT Regulations to the extent such
information as is reasonably necessary to enable the Trustee to do so is
provided to the Trustee on a timely basis. The Trustee will not be liable for
any tax reporting penalties that may arise under the WHFIT Regulations as a
result of the Depositor incorrectly determining the status of the grantor trust
as a WHFIT.
161
(b) The
Trustee will report required WHFIT information using either the cash or accrual
method, except to the extent the WHFIT Regulations specifically require a
different method. The Trustee will be under no obligation to determine whether
any certificate holder uses the cash or accrual method. In addition, the Trustee
will not be responsible or liable for providing subsequently amended, revised
or
updated information to any certificate holder, unless requested by the
certificate holder or as required under applicable law.
(c) The
Trustee shall not be liable for failure to meet the reporting requirements
of
the WHFIT Regulations nor for any penalties thereunder if such failure is due
to: (i) the lack of reasonably necessary information being provided to the
Trustee or (ii) incomplete, inaccurate or untimely information being provided
to
the Trustee. Each owner of a class of securities representing, in whole or
in
part, beneficial ownership of an interest in a WHFIT, by acceptance of its
interest in such class of securities, will be deemed to have agreed to provide
the Trustee with information regarding any sale of such securities, including
the price, amount of proceeds and date of sale. Absent receipt of such
information, and unless informed otherwise by the Depositor, the Trustee will
assume there is no secondary market trading of WHFIT interests.
(d) To
the
extent required by the WHFIT Regulations, the Trustee will use reasonable
efforts to publish on an appropriate website the CUSIPs for the certificates
that represent ownership of a WHFIT. The CUSIPs so published will represent
the
Rule 144A CUSIPs. The Trustee will make reasonable good faith efforts to keep
the website accurate and updated to the extent CUSIPs have been received. Absent
the receipt of a CUSIP, the Trustee will use a reasonable identifier number
in
lieu of a CUSIP. The Trustee will not be liable for investor reporting delays
that result from the receipt of inaccurate or untimely CUSIP
information.
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, the Master Servicer
and the Trustee, with the consent of the NIMS Insurer, but without the consent
of the Swap Counterparty (except to the extent that the rights or obligations
of
(1) the Swap
162
Counterparty
hereunder or (2) the Swap Counterparty
under the Swap Agreement (or the ability of the Trustee on behalf of the
Supplemental Interest Trust to perform fully and timely its obligations under
the Swap Agreement), are affected thereby, in which case prior written consent
of the Swap Counterparty is required) and without notice to or the consent
of
any of the Holders, (i) to cure any ambiguity, (ii) to cause the provisions
herein to conform to or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust Fund or this Agreement in
any
Offering Document, or to correct or supplement any provision herein which may
be
inconsistent with any other provisions herein or with the provisions of any
Servicing Agreement, (iii) to make any other provisions with respect to matters
or questions arising under this Agreement or (iv) to add, delete, or amend
any
provisions to the extent necessary or desirable to comply with any requirements
imposed by the Code and the REMIC Provisions. No such amendment effected
pursuant to the preceding sentence shall, as evidenced by an Opinion of Counsel,
result in an Adverse REMIC Event, 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, the Swap
Counterparty and the NIMS Insurer shall be provided with an Opinion of Counsel
addressed to the Trustee, the Swap Counterparty and the NIMS Insurer (at the
expense of the party requesting such amendment) to the effect that such
amendment is permitted under this Section. Any such amendment shall be deemed
not to adversely affect in any material respect any Holder, if the Trustee
and
the NIMS Insurer receive written confirmation from each Rating Agency that
such
amendment will not cause such Rating Agency to reduce the then current rating
assigned to the Certificates (and any Opinion of Counsel requested by the
Trustee in connection with any such amendment may rely expressly on such
confirmation as the basis therefor).
(b) This
Agreement may also be amended from time to time by the Depositor, the Master
Servicer, the NIMS Insurer and the Trustee, but without the consent of the
Swap
Counterparty (except to the extent that the rights or obligations of (1) the
Swap Counterparty hereunder or (2) the Swap Counterparty under the Swap
Agreement (or the ability of the Trustee on behalf of the Supplemental Interest
Trust to perform fully and timely its obligations under the Swap Agreement
are
affected thereby, in which case the prior written consent of the Swap
Counterparty is required) with the consent of the Holders of not less than
66 2/3% of the Class Principal Amount (or Class Notional 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 addressed to the Trustee and the NIMS
Insurer, 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 Mortgage Loans which are required to be distributed on
any
Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount (or Percentage
Interest) of Certificates of each Class, the Holders of which are required
to
consent to any such amendment without the consent of the Holders of 100% of
the
Class Principal Amount or Class Notional Amount (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.
163
(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 NIMS
Insurer, the Depositor, the Swap Counterparty 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 any Servicing Agreement, the Trustee shall not
consent to any amendment of any Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in this Section with respect to
amendment of this Agreement and (ii) except for a Permitted Servicing Amendment,
any such amendment pursuant to Section 11.03(a)(iii) shall not be materially
inconsistent with the provisions of such Servicing Agreement.
(f) Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor, the Master Servicer and the Trustee to
the
extent necessary, in the judgment of the Depositor and its counsel, to comply
with the Rules, Regulation AB and any related rules and
regulations.
Section
11.04 Voting
Rights.
Except
to
the extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Principal Amount or Class Notional Amount
(or Percentage Interest), Certificates owned by the Depositor, the Master
Servicer, the Trustee, the Servicer or Affiliates thereof are not to be counted
so long as such Certificates are owned by the Depositor, the Master Servicer,
the Trustee, any Servicer or any Affiliate thereof.
Section
11.05 Provision
of Information.
(a) For
so
long as any of the Certificates of any series or Class are “restricted
securities” within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer and the Trustee agree to cooperate with each
other to provide to any Certificateholders, and to any prospective purchaser
of
Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder
or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee
in
providing such information shall be reimbursed by the Depositor.
(b) The
Trustee shall make available to any person to whom a Prospectus was delivered,
upon the request of such person specifying the document or documents requested,
(i) a copy (excluding exhibits) of any report on Form 8-K, Form 10-D or Form
10-K filed with the Commission pursuant to Section 6.20(c), (d) or (e) and
(ii)
a copy of any other document incorporated by reference in the Prospectus (to
the
extent that the Trustee has such documents in
164
its
possession or such documents are reasonably
obtainable by the Trustee). Any reasonable out-of-pocket expenses incurred
by
the Trustee in providing copies of such documents shall be reimbursed by the
Depositor.
(c) On
each
Distribution Date, the Trustee shall make available on its website or otherwise
deliver to the Depositor 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 received by (a) in the case of the
Depositor, Structured Asset Securities Corporation, 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance, LXS 2007-20N,
(b)
in the case of the Seller, Xxxxxx Brothers Holdings Inc., 000 Xxxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance, LXS 2007-20N,
(c) in the case of the Trustee, U.S. Bank National Association, One Federal
Street, Boston, M.A. 02110, Attention: Corporate Trust Services, (d) in the
case
of the NIMS Insurer, if any, as set forth in the Indenture, (e) in the case
of
the Swap Counterparty and Cap Provider, at the address therefore set forth
in
the Swap Agreement and the Interest Rate Cap Agreement, respectively, and (f)
in
the case of the Master Servicer, Aurora Loan Services LLC, 00000 Xxxx Xxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000; Attention: Master Servicing, LXS 2007-20N.
All
demands, notices and communications to a party 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 above
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.
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
165
partial
exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver
of
such right, remedy, power or privilege with respect to any other occurrence.
No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
Section
11.10 Headings
Not To Affect Interpretation.
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section
11.11 Benefits
of Agreement.
Nothing
in this Agreement or in the Certificates, express or implied, shall give to
any
Person, other than the parties to this Agreement and their successors hereunder,
the Swap Counterparty and its successors and assigns under the Swap Agreement,
the Holders of the Certificates, any benefit or any legal or equitable right,
power, remedy or claim under this Agreement, except to the extent specified
in
Section 5.08 and Section 11.16.
Section
11.12 Special
Notices to the Rating Agencies, the Swap Counterparty and NIMS
Insurer.
(a) The
Depositor shall give prompt notice to the Rating Agencies, the Swap Counterparty
and the NIMS Insurer of the occurrence of any of the following events of which
it has notice:
(i) any
amendment to this Agreement pursuant to Section 11.03;
(ii) any
Assignment by the Master Servicer of its rights hereunder or delegation of
its
duties hereunder;
(iii) the
occurrence of any Event of Default described in Section 6.14;
(iv) any
notice of termination given to the Master Servicer pursuant to Section 6.14
and
any resignation of the Master Servicer hereunder;
(v) the
appointment of any successor to any Master Servicer pursuant to Section
6.14;
(vi) the
making of a final payment pursuant to Section 7.02; and
(vii) any
termination of the rights and obligations of any Servicer under any Servicing
Agreement.
(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
Fitch, to:
166
Fitch
Ratings
Xxx
Xxxxx
Xxxxxx Xxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Residential Mortgages
If
to
S&P, to:
Standard
& Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
(c) The
Trustee shall provide or make available to the Rating Agencies and the NIMS
Insurer reports prepared pursuant to Section 4.03. In addition, the Trustee
shall, at the expense of the Trust Fund, make available to each Rating Agency
such information as such Rating Agency may reasonably request regarding the
Certificates or the Trust Fund, to the extent that such information is
reasonably available to the Trustee.
Section
11.13 Conflicts.
To
the
extent that the terms of this Agreement conflict with the terms of any Servicing
Agreement, such Servicing Agreement shall govern unless such provisions shall
adversely affect the Trustee, the Trust Fund or the status of any REMIC created
hereunder as a REMIC, provided that nothing in this Section 11.13 shall be
construed to limit the rights or obligations of the Master Servicer under
Section 9.05 of this Agreement.
Section
11.14 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
11.15 Transfer
of Servicing.
The
Seller agrees that it shall provide written notice to the Master Servicer,
the
NIMS Insurer and the Trustee thirty days prior to any proposed transfer or
assignment by the Seller of its rights under any Servicing Agreement or of
the
servicing thereunder from time to time with respect to any Mortgage Loan or
group of Mortgage Loans, or delegation of its rights or duties thereunder or
any
portion thereof to any other Person other than the initial Servicer under such
Servicing Agreement; provided, however, that the Seller shall not be required
to
provide prior notice of any transfer of servicing that occurs within three
months following the Closing Date to an entity that is a Servicer on the Closing
Date. In addition, the ability of the Seller to transfer or assign its rights
and delegate its duties under a Servicing Agreement or to transfer the servicing
thereunder, from time to time with respect to any Mortgage Loan or group of
Mortgage Loans, to a successor servicer shall be subject to the following
conditions:
(i) Satisfaction
of the conditions to such transfer as set forth in the Servicing Agreement
including, without limitation, receipt of written consent of the Master Servicer
to such transfer;
167
(ii) Receipt
of the written consent of the NIMS Insurer, such consent not to be unreasonably
withheld;
(iii) Such
successor servicer must be qualified to service loans for Xxxxxx Xxx or Xxxxxxx
Mac, and must be a member in good standing of MERS;
(iv) Such
successor servicer must satisfy the seller/servicer eligibility standards in
the
applicable Servicing Agreement, exclusive of any experience in mortgage loan
origination and must be reasonably acceptable to the Master Servicer, whose
approval shall not be unreasonably withheld;
(v) Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by the applicable Servicer under the
related Servicing Agreement or such successor servicer shall execute and deliver
to the Trustee and Master Servicer a servicing agreement which contains
customary and reasonable servicing provisions and which will not cause either
Rating Agency to qualify, withdraw or downgrade the then-current rating of
any
of the Certificates or, (i) in the case of a transfer of servicing to a party
that is already a Servicer pursuant to this Agreement, an agreement to add
the
related Mortgage Loans to the Servicing Agreement already in effect with such
Servicer and (ii) in the case of a transfer of servicing to a Special Servicer
pursuant to Section 9.32 herein, a special servicing agreement in the form
of
that attached to the applicable Servicing Agreement;
(vi) If
the
successor servicer is not a Servicer of Mortgage Loans at the time of the
transfer, there must be delivered to the Trustee and the Master Servicer a
letter from each Rating Agency to the effect that such transfer of servicing
will not result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates; and
(vii) The
Seller shall, at its cost and expense, take such steps, or cause the
transferring Servicer to take such steps, as may be necessary or appropriate
to
effectuate and evidence the transfer of the servicing of the specified Mortgage
Loans to such successor or replacement servicer, including, but not limited
to,
the following: (A) to the extent required by the terms of the Mortgage Loans
and
by applicable federal and state laws and regulations, the Seller shall cause
the
prior Servicer to timely mail to each obligor under a Mortgage Loan any required
notices or disclosures describing the transfer of servicing of the Mortgage
Loans to the successor or replacement servicer; (B) prior to the effective
date
of such transfer of servicing, the Seller shall cause the prior Servicer to
transmit to any related insurer notification of such transfer of servicing;
(C)
on or prior to the effective date of such transfer of servicing, the Seller
shall cause the prior Servicer to deliver to the successor or replacement
servicer all Mortgage Loan Documents and any related records or materials;
(D)
on or prior to the effective date of such transfer of servicing, the Seller
shall cause the prior Servicer to transfer to the successor or replacement
servicer, or, if such transfer occurs after a Servicer Remittance Date but
before the next succeeding Deposit Date, to the Trustee, all funds held by
the
prior Servicer in respect of the Mortgage Loans; (E) on or prior to the
effective date of such transfer of servicing, the Seller shall cause the prior
Servicer to, after the effective date of the transfer of servicing to the
168
successor
or replacement servicer, continue to forward
to such successor or replacement servicer, within one Business Day of receipt,
the amount of any payments or other recoveries received by the prior Servicer,
and to notify the successor or replacement servicer of the source and proper
application of each such payment or recovery; and (F) the Seller shall cause
the
prior Servicer to, after the effective date of transfer of servicing to the
successor or replacement servicer, continue to cooperate with the successor
or
replacement servicer to facilitate such transfer in such manner and to such
extent as the successor or replacement servicer may reasonably request.
Notwithstanding the foregoing, the prior Servicer shall be obligated to perform
the items listed above to the extent provided in the applicable Servicing
Agreement.
Section
11.16 Third
Party Rights.
The
NIMS
Insurer shall be deemed a third-party beneficiary of this Agreement to the
same
extent as if it were a party hereto, and shall have the right to enforce the
provisions of this Agreement.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
169
IN
WITNESS WHEREOF, the Depositor, the Trustee and the Master Servicer 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: | ||
|
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Senior Vice President
|
||
|
U.S.
BANK NATIONAL ASSOCIATION,
not
in its individual capacity, but solely
as
Trustee
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
|
AURORA
LOAN SERVICES LLC,
as
Master Servicer
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Accepted
and agreed to by:
XXXXXX
BROTHERS HOLDINGS INC.
By:
Name:
Title:
EXHIBIT
A
FORMS
OF
CERTIFICATES
[INTENTIONALLY
OMITTED]
X-0
XXXXXXX
X-0
FORM
OF
INITIAL CERTIFICATION
| Date |
|
U.S.
Bank
National Association
0
Xxxxxxx
Xxxxxx
Xxxxxx,
X.X. 00000
Attention:
Corporate Trust Services
Aurora
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation, as Depositor
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2007-20N
[NIMS
Insurer, if applicable]
|
Re:
|
Trust
Agreement dated as of November 1, 2007 (the “Trust Agreement”), by and
among Structured Asset Securities Corporation, as Depositor, Aurora
Loan
Services LLC, as Master Servicer and U.S. Bank National Association,
as
Trustee with respect to Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2007-20N
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Trust Agreement, subject to review of
the
contents thereof, the undersigned, as Custodian, hereby certifies that it has
received the documents listed in Section 2.01(b) of the Trust Agreement for
each
Mortgage File pertaining to each Mortgage Loan listed on Schedule A, to the
Trust Agreement, subject to any exceptions noted on Schedule I
hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have the
respective meanings assigned to them in the Trust Agreement. This Certificate
is
subject in all respects to the terms of Section 2.02 of the Trust Agreement
and
the Trust Agreement sections cross-referenced therein.
| [Custodian] | ||
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| By: | ||
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Name: |
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| Title: | ||
X-0-0
XXXXXXX
X-0
FORM
OF
INTERIM CERTIFICATION
| Date |
|
U.S.
Bank
National Association
0
Xxxxxxx
Xxxxxx
Xxxxxx,
X.X. 00000
Attention:
Corporate Trust Services
Aurora
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation, as Depositor
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2007-20N
[NIMS
Insurer, if applicable]
|
Re:
|
Trust
Agreement dated as of November 1, 2007 (the “Trust Agreement”), by and
among Structured Asset Securities Corporation, as Depositor, Aurora
Loan
Services LLC, as Master Servicer and U.S. Bank National Association,
as
Trustee with respect to Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2007-20N
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Trust Agreement, the undersigned, as
Custodian, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on Schedule
I
hereto) it (or its custodian) has received the applicable documents listed
in
Section 2.01(b) of the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears regular on its
face
and appears to relate to the Mortgage Loan identified in such
document.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement including, but not limited to, Section
2.02(b).
| [Custodian] | ||
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| By: | ||
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Name: |
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| Title: | ||
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CERTIFICATION
| Date |
|
U.S.
Bank
National Association
0
Xxxxxxx
Xxxxxx
Xxxxxx,
X.X. 00000
Attention:
Corporate Trust Services
Aurora
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation, as Depositor
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2007-20N
[NIMS
Insurer, if applicable]
|
Re:
|
Trust
Agreement dated as of November 1, 2007 (the “Trust Agreement”), by and
among Structured Asset Securities Corporation, as Depositor, Aurora
Loan
Services LLC, as Master Servicer and U.S. Bank National Association,
as
Trustee with respect to Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2007-20N
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Trust Agreement, the undersigned, as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on Schedule I hereto) it (or its custodian) has received the
applicable documents listed in Section 2.01(b) of the Trust
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified in the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears to be complete
and,
based on an examination of such documents, the information set forth in items
(i) through (vi) of the Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement.
| [Custodian] | ||
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| By: | ||
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Name: |
||
| Title: | ||
X-0-0
XXXXXXX
X-0
FORM
OF
ENDORSEMENT
Pay
to
the order of U.S. Bank National Association, as trustee (the “Trustee”), under a
Trust Agreement dated as of November 1, 2007, among Structured Asset Securities
Corporation, as depositor, Aurora Loan Services LLC, as master servicer, and
the
Trustee, relating to Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series
2007-20N, without recourse.
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[current signatory on note]
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| By: | ||
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Name: |
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| Title: | ||
B-4-1
EXHIBIT
C
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
| Date |
|
[Addressed
to Trustee
or,
if
applicable, Custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Trust Agreement dated as of November 1, 2007 by and among Structured
Asset Securities Corporation, as Depositor, U.S. Bank National Association,
as
Trustee, and Aurora Loan Services LLC, as Master Servicer (the “Trust
Agreement”), the undersigned Servicer hereby requests a release of the Mortgage
File held by you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The Servicer hereby certifies that all amounts received
in
connection with the loan have been or will be credited to the Certificate
Account pursuant to the Trust Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The Servicer hereby certifies that a Qualifying Substitute
Mortgage Loan has been assigned and delivered to you along with the related
Mortgage File pursuant to the Trust Agreement.)
4. Mortgage
Loan repurchased. (The Servicer hereby certifies that the applicable Purchase
Price has been credited to the Certificate Account pursuant to the Trust
Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Trust Agreement and will
be
returned to you within ten (10) days of our receipt of the Mortgage File, except
if the Mortgage Loan has been paid in full, or repurchased or substituted for
a
Qualifying Substitute Mortgage Loan (in which case the Mortgage File will be
retained by us permanently) and except if the Mortgage Loan is being foreclosed
(in which case the Mortgage File will be returned when no longer required by
us
for such purpose).
C-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Trust
Agreement.
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[Name
of Servicer]
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| By: | ||
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Name: |
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| Title: Servicing Officer | ||
C-2
EXHIBIT
D-1
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
| STATE OF |
)
|
| ) ss.: |
| COUNTY OF | ) |
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
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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.
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2.
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That
the Purchaser’s Taxpayer Identification Number is [
].
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3.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the
“Code”) and will not be a “disqualified organization” as of [date of
transfer], and that the Purchaser is not acquiring a Residual Certificate
(as defined in the Agreement) for the account of, or as agent (including
a
broker, nominee, or other middleman) for, any person or entity from
which
it has not received an affidavit substantially in the form of this
affidavit. For these purposes, a “disqualified organization” means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality
of any of the foregoing (other than an instrumentality if all of
its
activities are subject to tax and a majority of its board of directors
is
not selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons
in
rural areas as described in Code Section 1381(a)(2)(C), any “electing
large partnership” within the meaning of Section 775 of the Code, or any
organization (other than a farmers’ cooperative described in Code Section
521) that is exempt from federal income tax unless such organization
is
subject to the tax on unrelated business income imposed by Code Section
511.
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4.
|
That
the Purchaser is not, and on _______________ [date of transfer] will
not
be, an employee benefit plan or other arrangement subject to Title
I of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
a plan subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended (the “Code”) or a plan subject to any provisions under any
federal, state, local, non-U.S. or other laws or regulations that
are
substantively similar to the foregoing provisions of ERISA or the
Code
(collectively, a “Plan”), and is not directly or indirectly acquiring a
Residual Certificate for, on behalf of or with any assets of any
such
Plan.
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D-1-1
|
5.
|
That
the Purchaser hereby acknowledges that under the terms of the Trust
Agreement (the “Agreement”) by and among Structured Asset Securities
Corporation, as Depositor, Aurora Loan Services LLC, as Master Servicer,
and U.S. Bank National Association, as Trustee, dated as of November
1,
2007, relating to Xxxxxx XS Trust Mortgage Pass-Through Certificates,
Series 2007-20N, no transfer of the Residual Certificates shall be
permitted to be made to any person unless the Depositor and Trustee
have
received a certificate from such transferee containing the representations
in paragraphs 3 and 4 hereof.
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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”).
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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.
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8.
|
That
the Purchaser will not transfer a Residual Certificate to any person
or
entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10
hereof
are not satisfied or that the Purchaser has reason to believe does
not
satisfy the requirements set forth in paragraph 7 hereof, and (ii)
without
obtaining from the prospective Purchaser an affidavit substantially
in
this form and providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the
Agreement.
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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.
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10.
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That
the Purchaser (i) is not a Non U.S. Person or (ii) is a Non U.S.
Person
that holds a Residual Certificate in connection with the conduct
of a
trade or business within the United States and has furnished the
transferor and the Trustee with an effective Internal Revenue Service
Form
W-8ECI (Certificate of Foreign Person’s Claim for Exemption From
Withholding on Income Effectively Connected With the Conduct of a
Trade or
Business in the United States) or successor form at the time and
in the
manner required by the Code or (iii) is a Non U.S. Person that has
delivered to both the transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the transfer
of such
Residual Certificate to it is in accordance with the requirements
of the
Code and the regulations promulgated thereunder and that such transfer
of
a Residual Certificate will not be disregarded for federal income
tax
purposes. “Non U.S. Person” means an individual, corporation, partnership
or other person other than (i) a citizen or
|
X-0-0
xxxxxxxx
xx xxx Xxxxxx Xxxxxx; (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, including for this purpose, the District
of
Columbia; (iii) an estate that is subject to U.S. federal income tax regardless
of the source of its income; (iv) a trust if a court within the United States
is
able to exercise primary supervision over the administration of the trust and
one or more United States trustees have authority to control all substantial
decisions of the trust; and, (v) to the extent provided in Treasury regulations,
certain trusts in existence on 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.
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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.
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12.
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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.
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D-1-3
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__.
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[name
of Purchaser]
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| 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
RESIDUAL
CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
|
Date
|
||
|
Re:
|
Xxxxxx
XS Trust
Mortgage
Pass-Through Certificates, Series
2007-20N
|
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
| Very truly yours, | |||
|
|
|||
|
Name:
|
|||
| Title: |
D-2-1
EXHIBIT
E
SERVICING
AGREEMENTS
Reconstituted
Servicing Agreement, dated as of November 1, 2007, by and between the Seller
and
Countrywide Home Loans Servicing LP
[INTENTIONALLY
OMITTED]
Servicing
Agreement, dated as of November 1, 2007, by and between the Seller and Aurora
Loan Services LLC
[SEE
EXHIBIT 99.2]
E-1
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Xxxxxx
XS Trust
Mortgage
Pass Through Certificates, Series
2007-20N
|
Reference
is hereby made to the Trust Agreement dated as of November 1, 2007 (the “Trust
Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
Aurora Loan Services LLC, as Master Servicer, and U.S. Bank National
Association, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Trust Agreement.
This
letter relates to $__________ initial Certificate Balance of Class Certificates
which are held in the form of Definitive Certificates registered in the name
of
(the “Transferor”). The Transferor has requested a transfer of such Definitive
Certificates for Definitive Certificates of such Class registered in the name
of
[insert name of transferee].
In
connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Act to a purchaser that the
Transferor reasonably believes is a “qualified institutional buyer” within the
meaning of Rule 144A purchasing for its own account or for the account of a
“qualified institutional buyer,” which purchaser is aware that the sale to it is
being made in reliance upon Rule 144A, in a transaction meeting the requirements
of Rule 144A and in accordance with any applicable securities laws of any state
of the United States or any other applicable jurisdiction.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Depositor.
|
[Name of Transferor]
|
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| By: | ||
|
Name: |
||
| Title: | ||
Dated:
___________, ____
F-1
EXHIBIT
G
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTOR
| Date |
|
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount of
Xxxxxx XS Trust Mortgage Pass Through Certificates, Series 2007-20N (the
“Privately Offered Certificates”) of the Structured Asset Securities Corporation
(the “Depositor”), we confirm that:
|
(1)
|
We
understand that the Privately Offered Certificates have not been,
and will
not be, registered under the Securities Act of 1933, as amended (the
“Securities Act”), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of
any
accounts for which we are acting as hereinafter stated, that if we
should
sell any Privately Offered Certificates within two years of the later
of
the date of original issuance of the Privately Offered Certificates
or the
last day on which such Privately Offered Certificates are owned by
the
Depositor or any Affiliate of the Depositor 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 November
1,
2007 by and among the Depositor, Aurora Loan Services LLC, as Master
Servicer, and U.S. Bank National Association, as Trustee (the “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
Privately Offered Certificates from us a notice advising such purchaser
that resales of the Privately Offered Certificates are restricted
as
stated herein.
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(2)
|
We
understand that, in connection with any proposed resale of any Privately
Offered Certificates to an Institutional Accredited Investor, we
will be
required to furnish to the Trustee and the Depositor a certification
from
such transferee in the form hereof to confirm that the proposed sale
is
being made pursuant to an exemption from, or in a transaction not
subject
to, the registration requirements of the Securities Act. We further
understand that the Privately Offered Certificates purchased by us
will
bear a legend to the foregoing
effect.
|
|
(3)
|
We
are acquiring the Privately Offered Certificates for investment purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in
|
G-1
violation
of the Securities Act. We have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Privately Offered Certificates,
and we and any account for which we are acting are each able to bear the
economic risk of such investment.
|
(4)
|
We
are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
|
(5)
|
We
have received such information as we deem necessary in order to make
our
investment decision.
|
|
(6)
|
If
we are acquiring an ERISA-Restricted Certificate, we are not a Plan
and we
are not acquiring the ERISA-Restricted Certificate for, on behalf
of or
with any assets of a Plan, except as may be permitted pursuant to
Section
3.03(d) of the Trust Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust Agreement.
G-2
You
and
the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceeding or official inquiry with respect to
the
matters covered hereby.
| Very truly yours, | ||
|
[Purchaser]
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
G-3
EXHIBIT
H
FORM
OF
ERISA TRANSFER AFFIDAVIT
| STATE OF NEW YORK |
)
|
| ) ss.: |
| COUNTY OF NEW YORK | ) |
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of (the “Investor”), a [corporation
duly organized] and existing under the laws of __________, on behalf of which
he
makes this affidavit.
2. The
Investor in an ERISA-Restricted Certificate (A) is not, and on _______________
[date of transfer] will not be, an employee benefit plan or arrangement subject
to Title I of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), a plan subject to Section 4975 of the Internal Revenue Code of 1986,
as amended (the “Code”) or a plan subject to any provisions under any federal,
state, local, non-U.S. or other laws or regulations that are substantively
similar to the foregoing provisions of ERISA or the Code (“Similar Law”)
(collectively, a “Plan”), and is not directly or indirectly acquiring the
Certificate for, on behalf of or with any assets of any such Plan, (B) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, is an
insurance company that is acquiring the Certificate with assets of an “insurance
company general account” as defined in Section V(E) of Prohibited Transaction
Class Exemption (“PTCE”) 95-60 and the acquisition and holding of the
Certificate are covered and exempt under Sections I and III of PTCE 95-60,
or
(C) solely in the case of a Definitive Certificate, shall herewith deliver
an
Opinion of Counsel satisfactory to the Certificate Registrar, the Trustee and
the Depositor, and upon which the Trustee, the Certificate Registrar and the
Depositor shall be entitled to rely, to the effect that the acquisition and
holding of such Certificate by the Investor will not result in a nonexempt
prohibited transaction under Title I of ERISA or Section 4975 of the Code,
or a
violation of Similar Law, and will not subject the Trustee, the Master Servicer,
the Certificate Registrar, any Servicer 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 Trustee, the Master Servicer,
the Certificate Registrar, any Servicer or the Depositor.
3. Either
(A) the investor in a Certificate other than ERISA-Restricted Certificates,
Class R Certificates and Class AX Certificates is not, and is not acting for,
on
behalf of or with any assets of, an employee benefit plan or other arrangement
subject to Title I of ERISA or plan subject to Section 4975 of the Code, or
(B)
until the termination of the Swap Agreement, the acquisition and holding of
the
Certificate will not constitute or result in a non-exempt prohibited transaction
under Title I of ERISA or Section 4975 of the Code.
H-1
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________, 20___.
|
[Investor]
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
ATTEST:
________________________________________________________________________________________________
| STATE OF |
)
|
| ) ss.: |
| COUNTY OF | ) |
Personally
appeared before me the above-named ________________, known or proved to me
to be
the same person who executed the foregoing instrument and to be the
____________________ of the Investor, and acknowledged that he executed the
same
as his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of _________ 20___.
|
NOTARY PUBLIC
|
||
| |
My
commission expires the
_____
day of __________, 20___.
|
|
H-2
EXHIBIT
I
[RESERVED]
I-1
EXHIBIT
J
[RESERVED]
J-1
EXHIBIT
K
CUSTODIAL
AGREEMENTS
1. Custodial
Agreement, dated as of November 1, 2007, by and among Deutsche Bank National
Trust Company, as Custodian, and U.S. Bank National Association, as
Trustee.
2. Custodial
Agreement, dated as of November 1, 2007, by and among U.S. Bank National
Association, as Custodian, and U.S. Bank National Association, as
Trustee.
3. Custodial
Agreement, dated as of November 1, 2007, by and among LaSalle Bank National
Association, as Custodian, and U.S. Bank National Association, as
Trustee
[INTENTIONALLY
OMITTED].
K-1
EXHIBIT
L
[RESERVED]
L-1
EXHIBIT
M
[RESERVED]
M-1
EXHIBIT
N
FORM
OF
SWAP AGREEMENT
[SEE
EXHIBIT 99.4]
N-1
EXHIBIT
O
FORM
OF
INTEREST RATE CAP AGREEMENT
[SEE
EXHIBIT 99.5]
O-1
EXHIBIT
P
[RESERVED]
P-1
EXHIBIT
Q-1
ADDITIONAL
FORM 10-D DISCLOSURE
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Master
Servicer (as to any Servicer, to the extent provided by such
Servicer),
Trustee
(if Paying Agent), Paying Agent and Depositor (to the extent of
any
additional information that has not already been provided by the
Master
Servicer)
|
|
Item
2: Legal Proceedings
per
Item 1117 of Reg AB
|
(i)
All parties to the Trust Agreement (as to themselves), (ii) the
Trustee as
to the issuing entity, (iii) the Depositor as to the sponsor, any
1110(b)
originator, any 1100(d)(1) party and (iv) the Master Servicer,
as to any
Servicer, to the extent provided by such Servicer
|
|
Item
3: Sale of Securities and Use of Proceeds
|
Depositor
|
|
Item
4: Defaults Upon Senior Securities
|
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security Holders
|
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
|
Depositor
|
|
Item
7: Significant Enhancement Provider Information
|
Depositor
|
|
Item
8: Other Information
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
9: Exhibits
|
Depositor
|
Q-1-1
EXHIBIT
Q-2
ADDITIONAL
FORM 10-K DISCLOSURE
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Depositor,
Servicer, Master Servicer, Subservicer
|
|
Additional
Item:
Disclosure
per Item 1117 of Reg AB
|
(i)
All parties to the Trust Agreement (as to themselves), (ii) the
Trustee
and Depositor as to the issuing entity, (iii) the Depositor as
to the
sponsor, any 1110(b) originator, any 1100(d)(1) party and (iv)
the Master
Servicer, as to any Servicer, to the extent provided by such
Servicer
|
|
Additional
Item:
Disclosure
per Item 1119 of Reg AB
|
(i)
All parties to the Trust Agreement as to themselves, (ii) the Depositor
as
to the sponsor, originator, significant obligor, enhancement or
support
provider and (iii) the Master Servicer, as to any Servicer, to
the extent
provided by such Servicer
|
|
Additional
Item:
Disclosure
per Item 1112(b) of Reg AB
|
Depositor
|
|
Additional
Item:
Disclosure
per Items 1114(b) and 1115(b) of Reg AB
|
Depositor
|
Q-2-1
EXHIBIT
Q-3
ADDITIONAL
FORM 8-K DISCLOSURE
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
|
Any
party to the Trust Agreement which is a party to such
agreement
|
|
Item
1.02- Termination of a Material Definitive Agreement
|
Any
party to the Trust Agreement which is a party to such
agreement
|
|
Item
1.03- Bankruptcy or Receivership
|
Depositor
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
|
Depositor
|
|
Item
3.03- Material Modification to Rights of Security Holders
|
Trustee
and Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
|
Depositor
|
|
Item
6.01- ABS Informational and Computational Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Trustee
|
Master
Servicer (as to itself and as to any Servicer, to the extent provided
by
such Servicer), Trustee (as to itself), Seller
|
|
Item
6.03- Change in Credit Enhancement or External Support
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
Depositor
|
|
Item
8.01
|
Depositor
|
|
Item
9.01
|
Depositor
|
Q-3-1
EXHIBIT
Q-4
ADDITIONAL
DISCLOSURE NOTIFICATION
U.S.
Bank
National Association,
as
Trustee to Xxxxxx XS Trust Mortgage
Pass-Through
Certificates, Series 2007-20N
Xxx
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
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 November 1, 2007, by and among Structured Asset Securities Corporation,
as
Depositor, Aurora Loan Services LLC, as Master Servicer, and U.S. Bank National
Association, as Trustee, the undersigned, as [ ], hereby notifies you that
certain events have come to our attention that [will] [may] need to be disclosed
on Form [10-D][10-K][8-K].
Description
of Additional 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: | ||
Q-4-1
EXHIBIT
R
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Key:
X
-
obligation
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements. Capitalized terms used herein but not defined herein shall have
the
meanings assigned to them in the Trust Agreement dated as of November 1, 2007
(the “Trust Agreement”), by and among U.S. Bank National Association, (the
“Trustee”), Aurora Loan Services LLC, as master servicer (the “Master
Servicer”), and Structured Asset Securities Corporation, as depositor (the
“Depositor”).
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Trustee
|
Master
Servicer
|
|
General Servicing
Considerations
|
||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
If
applicable for the transaction participant
|
If
applicable for the transaction participant
|
If
applicable for the transaction participant
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
||
|
Cash Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on 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.
|
X
|
X
|
R-1
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Trustee
|
Master
Servicer
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
|
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the
Servicer.
|
X
|
X
|
R-2
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Trustee
|
Master
Servicer
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
X
|
|
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
|||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
|||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
|||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
R-3
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Trustee
|
Master
Servicer
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
R-4
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Trustee
|
Master
Servicer
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
X
|
R-5
EXHIBIT
S
TRANSACTION
PARTIES
SPONSOR
AND SELLER: XXXXXX BROTHERS HOLDINGS INC.
DEPOSITOR:
STRUCTURED ASSET SECURITIES CORPORATION
TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION
MASTER
SERVICER: AURORA LOAN SERVICES LLC
SERVICERS:
COUNTRYWIDE HOME LOANS SERVICING LP AND AURORA LOAN SERVICES LLC
TRANSFERORS:
AMERICAN HOME MORTGAGE CORP., COUNTRYWIDE HOME LOANS, INC., GREENPOINT MORTGAGE
FUNDING, INC., QUICKEN LOANS, INC. AND XXXXXX BROTHERS BANK, FSB
CUSTODIANS:
DEUTSCHE BANK NATIONAL TRUST COMPANY, U.S. BANK NATIONAL ASSOCIATION AND LASALLE
BANK NATIONAL ASSOCIATION
SWAP
COUNTERPARTY AND CAP PROVIDER: ABN AMRO N.V.
S-1
EXHIBIT
T
FORM
OF
BACK-UP XXXXXXXX-XXXXX CERTIFICATION
[ ]
[ ]
[ ]
Re: Xxxxxx
XS
Trust Mortgage Pass-Through Certificates, Series 2007-20N
[_______],
the [_______] of [_______] (the “Company”) hereby certifies to the Depositor,
the Master Servicer and the Trustee, and each of their officers, directors
and
affiliates that:
(1)
I
have reviewed [the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),] the
report on assessment of the Company’s compliance with the Servicing Criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that were delivered
by the Company to any of the Depositor, the Master Servicer and the Trustee
pursuant to the Agreement (collectively, the “Company Servicing
Information”);
(2)
Based
on my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3)
Based
on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the Depositor,
the Master Servicer and the Trustee;
(4)
I am
responsible for reviewing the activities performed by [_______] as [_______]
under the [_______] (the “Agreement”), and based on my knowledge [and the
compliance review conducted in preparing the Compliance Statement] and except
as
disclosed in [the Compliance Statement,] the Servicing Assessment or the
Attestation Report, the Company has fulfilled its obligations under the
Agreement in all material respects; and
(5)
[The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and] [The] [the] Servicing Assessment and Attestation Report required
to be provided by the Company and [by any Subservicer or Subcontractor] pursuant
to the Agreement, have been provided to the Depositor, the Master Servicer
and
the Trustee. Any material instances of noncompliance described in such reports
have been disclosed to the Depositor, the Master
T-1
Servicer
and the Trustee. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such
reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Trust Agreement, dated as of November 1, 2007 (the “Trust Agreement”) by and
among Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services LLC, as Master Servicer and U.S. Bank National Association, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Trust Agreement.
[_______]
as
[_______]
By:
Name:
Title:
Date:
T-2
EXHIBIT
U
FORM
OF
BACK-UP XXXXXXXX-XXXXX CERTIFICATION
TO
BE
PROVIDED BY THE TRUSTEE
|
Re:
|
Xxxxxx
XS Trust, Series 2007-20N (the “Trust”), Mortgage Pass-Through
Certificates, Series 2007-20N, issued pursuant to the Trust Agreement,
dated as of November 1, 2007, among Structured Asset Securities
Corporation, as Depositor, Aurora Loan Services, LLC,
as Master Servicer, and U.S. Bank National Association, as
Trustee
|
The
Trustee hereby certifies to the Depositor and the Master Servicer, and their
respective 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.
U-1
In
giving
the certifications above, the Trustee has reasonably relied on information
provided to it by the following unaffiliated parties: [names of servicer(s),
master servicer, subservicer(s), depositor, trustee, custodian(s)]
|
Date:
|
|||
|
U.S.
Bank National Association, as Trustee
|
|||
|
[Signature]
[Title]
|
U-2
EXHIBIT
V-1
FORM
OF
TRANSFER CERTIFICATE
FOR
TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(iii)
of
the
Agreement)
Re: Xxxxxx
XS
Trust, Series 2007-20N
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, and U.S. Bank National Association, as Trustee, dated as of November
1, 2007. Capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
This
letter relates to U.S. $
aggregate
principal amount of securities which are held in the form of a Restricted Global
Security with DTC in the name of [name of transferor] (the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Agreement and the securities and in accordance with Rule 904 of
Regulation S, and that:
a. the
offer
of the securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United States
or the Transferor and any person acting on its behalf reasonably believed that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended;
and
e. the
transferee is not a U.S. person (as defined in Regulation S).
V-1-1
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation
S.
[Name
of Transferor]
By:
Name:
Title:
Date:
,
V-1-2
EXHIBIT
V-2
FORM
OF
TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY
TO
RESTRICTED GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(C)
of
the
Agreement)
Re: Xxxxxx
XS
Trust, Series 2007-20N
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, and U.S. Bank National Association, as Trustee, dated as of November
1, 2007. Capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
This
letter relates to U.S. $ aggregate
principal amount of securities which are held in the form of a Regulations
S
Global Security in the name of [name of transferor] (the
“Transferor”) to effect the transfer of the securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Agreement and the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any such
account is a qualified institutional buyer within the meaning of Rule 144A,
in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction.
[Name
of Transferor]
By:
Name:
Title:
Date:
,
Schedule
V-2
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
On
file
at the offices of:
Dechert
LLP
Xxxx
Centre
2900
Xxxx
Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000
Attn:
Xxxxxx X. Xxxxxxx
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
Schedule
A
SCHEDULE
B
SWAP
AGREEMENT SCHEDULED NOTIONAL AMOUNTS AND RATES OF PAYMENT
|
Distribution
Date
|
Scheduled
Notional Amount ($)
|
Rate
of Payment (%)
|
|||||
|
December
25, 2007
|
0.00
|
0.00
|
|||||
|
January
25, 2008
|
406,719,040.00
|
5.22
|
|||||
|
February
25, 2008
|
395,905,126.00
|
4.97
|
|||||
|
March
25, 2008
|
385,382,938.00
|
4.76
|
|||||
|
April
25, 2008
|
375,144,501.00
|
4.49
|
|||||
|
May
25, 2008
|
365,182,060.00
|
4.34
|
|||||
|
June
25, 2008
|
355,488,076.00
|
4.19
|
|||||
|
July
25, 2008
|
346,055,218.00
|
4.09
|
|||||
|
August
25, 2008
|
336,876,358.00
|
4.02
|
|||||
|
September
25, 2008
|
327,944,562.00
|
3.94
|
|||||
|
October
25, 2008
|
319,253,093.00
|
3.90
|
|||||
|
November
25, 2008
|
310,795,394.00
|
3.87
|
|||||
|
December
25, 2008
|
302,565,093.00
|
3.85
|
|||||
|
January
25, 2009
|
294,555,993.00
|
3.84
|
|||||
|
February
25, 2009
|
286,762,067.00
|
3.85
|
|||||
|
March
25, 2009
|
279,177,455.00
|
3.86
|
|||||
|
April
25, 2009
|
271,796,459.00
|
3.89
|
|||||
|
May
25, 2009
|
264,613,536.00
|
3.93
|
|||||
|
June
25, 2009
|
257,623,298.00
|
3.96
|
|||||
|
July
25, 2009
|
250,820,504.00
|
4.01
|
|||||
|
August
25, 2009
|
244,198,716.00
|
4.05
|
|||||
|
September
25, 2009
|
237,754,389.00
|
4.10
|
|||||
|
October
25, 2009
|
231,482,212.00
|
4.14
|
|||||
|
November
25, 2009
|
225,378,009.00
|
4.18
|
|||||
|
December
25, 2009
|
219,437,219.00
|
4.22
|
|||||
|
January
25, 2010
|
213,654,559.00
|
4.28
|
|||||
|
February
25, 2010
|
208,026,606.00
|
4.31
|
|||||
|
March
25, 2010
|
202,548,978.00
|
4.34
|
|||||
|
April
25, 2010
|
197,217,054.00
|
4.37
|
|||||
|
May
25, 2010
|
192,026,704.00
|
4.40
|
|||||
|
June
25, 2010
|
186,974,078.00
|
4.43
|
|||||
|
July
25, 2010
|
182,054,766.00
|
4.46
|
|||||
|
August
25, 2010
|
177,263,668.00
|
4.49
|
|||||
|
September
25, 2010
|
172,596,658.00
|
4.52
|
|||||
|
October
25, 2010
|
168,050,394.00
|
4.55
|
|||||
|
November
25, 2010
|
163,612,288.00
|
4.58
|
|||||
|
December
25, 2010
|
145,979,631.00
|
4.62
|
|||||
|
January
25, 2011
|
142,138,980.00
|
4.66
|
|||||
|
February
25, 2011
|
138,396,733.00
|
4.69
|
|||||
Schedule
B-1
|
Distribution
Date
|
Scheduled
Notional Amount ($)
|
Rate
of Payment (%)
|
|||||
|
March
25, 2011
|
134,742,191.00
|
4.73
|
|||||
|
April
25, 2011
|
131,177,957.00
|
4.76
|
|||||
|
May
25, 2011
|
127,706,804.00
|
4.79
|
|||||
|
June
25, 2011
|
124,323,469.00
|
4.81
|
|||||
|
July
25, 2011
|
121,026,572.00
|
4.83
|
|||||
|
August
25, 2011
|
117,810,591.00
|
4.85
|
|||||
|
September
25, 2011
|
114,654,857.00
|
4.87
|
|||||
|
October
25, 2011
|
111,543,401.00
|
4.88
|
|||||
|
November
25, 2011
|
108,467,175.00
|
4.89
|
|||||
|
December
25, 2011
|
105,463,243.00
|
4.91
|
|||||
|
January
25, 2012
|
102,492,117.00
|
4.93
|
|||||
|
February
25, 2012
|
99,512,551.00
|
4.95
|
|||||
|
March
25, 2012
|
96,604,894.00
|
4.97
|
|||||
|
April
25, 2012
|
1,575,985.00
|
4.99
|
|||||
|
May
25, 2012
|
1,534,101.00
|
5.01
|
|||||
|
June
25, 2012
|
1,491,604.00
|
5.02
|
|||||
|
July
25, 2012
|
1,449,735.00
|
5.04
|
|||||
|
August
25, 2012
|
1,408,783.00
|
5.05
|
|||||
|
September
25, 2012
|
1,367,930.00
|
5.06
|
|||||
|
October
25, 2012
|
1,328,010.00
|
5.07
|
|||||
|
November
25, 2012
|
1,289,119.00
|
5.08
|
|||||
|
December
25, 2012 and thereafter
|
0.00
|
0.00
|
Schedule
B-2
