STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, CLAYTON FIXED INCOME SERVICES INC., as Credit Risk Manager, and CITIBANK, N.A., as Trustee
EXECUTION
STRUCTURED
ASSET SECURITIES CORPORATION, as Depositor,
AURORA
LOAN SERVICES LLC, as Master Servicer,
XXXXXXX
FIXED INCOME SERVICES INC., as Credit Risk Manager,
and
CITIBANK,
N.A., as Trustee
Dated
as
of June 1, 2007
MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES
2007-3
TABLE
OF
CONTENTS
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Page
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ARTICLE
I DEFINITIONS
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Section
1.01
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Definitions.
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16
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Section
1.02
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Calculations
Respecting Mortgage Loans.
|
61
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||
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Section
1.03
|
Calculations
Respecting Accrued Interest.
|
61
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ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
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|
Section
2.01
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Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
62
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|
Section
2.02
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
|
66
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||
|
Section
2.03
|
Representations
and Warranties of the Depositor.
|
68
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||
|
Section
2.04
|
Discovery
of Breach.
|
69
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|
Section
2.05
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
70
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|
Section
2.06
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Grant
Clause.
|
71
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ARTICLE
III THE CERTIFICATES
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||||
|
Section
3.01
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The
Certificates.
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72
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Section
3.02
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Registration.
|
73
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||
|
Section
3.03
|
Transfer
and Exchange of Certificates.
|
74
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||
|
Section
3.04
|
Cancellation
of Certificates.
|
80
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||
|
Section
3.05
|
Replacement
of Certificates.
|
80
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||
|
Section
3.06
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Persons
Deemed Owners.
|
81
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|
Section
3.07
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Temporary
Certificates.
|
81
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|
Section
3.08
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Appointment
of Paying Agent.
|
81
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|
Section
3.09
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Book-Entry
Certificates.
|
82
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||
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
||||
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Section
4.01
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Collection
Account.
|
83
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|
Section
4.02
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Application
of Funds in the Collection Account.
|
85
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|
Section
4.03
|
Reports
to Certificateholders.
|
87
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||
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Section
4.04
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Certificate
Account.
|
92
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|
Section
4.05
|
[Reserved].
|
94
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ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
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||||
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Section
5.01
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Distributions
Generally.
|
94
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Section
5.02
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Distributions
from the Certificate Account.
|
95
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||
|
Section
5.03
|
Allocation
of Losses.
|
108
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||
|
Section
5.04
|
Advances
by Master Servicer, Servicer and Trustee.
|
109
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Section
5.05
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Compensating
Interest Payments.
|
110
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|
Section
5.06
|
Basis
Risk Reserve Fund.
|
110
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|
Section
5.07
|
Supplemental
Interest Trust.
|
110
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|
Section
5.08
|
Rights
of Swap Counterparty.
|
113
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|
Section
5.09
|
Termination
Receipts.
|
114
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i
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ARTICLE
VI CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
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||||
|
Section
6.01
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Duties
of Trustee.
|
115
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||
|
Section
6.02
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Certain
Matters Affecting the Trustee.
|
120
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|
Section
6.03
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Trustee
Not Liable for Certificates.
|
121
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|
Section
6.04
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Trustee
May Own Certificates.
|
122
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||
|
Section
6.05
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Eligibility
Requirements for Trustee.
|
122
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||
|
Section
6.06
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Resignation
and Removal of Trustee.
|
122
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||
|
Section
6.07
|
Successor
Trustee.
|
123
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||
|
Section
6.08
|
Merger
or Consolidation of Trustee.
|
124
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|
Section
6.09
|
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
124
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Section
6.10
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Authenticating
Agents.
|
126
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||
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Section
6.11
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Indemnification
of Trustee.
|
127
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|
Section
6.12
|
Fees
and Expenses of Trustee and Custodian.
|
128
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||
|
Section
6.13
|
Collection
of Monies.
|
129
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||
|
Section
6.14
|
Events
of Default; Trustee To Act; Appointment of Successor.
|
129
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||
|
Section
6.15
|
Additional
Remedies of Trustee Upon Event of Default.
|
133
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|
Section
6.16
|
Waiver
of Defaults.
|
134
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|
Section
6.17
|
Notification
to Holders.
|
134
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||
|
Section
6.18
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
134
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|
Section
6.19
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
135
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||
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Section
6.20
|
Preparation
of Tax Returns and Other Reports.
|
135
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|
Section
6.21
|
Reporting
Requirements of the Commission.
|
143
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||
|
Section
6.22
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No
Merger.
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143
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ARTICLE
VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST
FUND
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Section
7.01
|
Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation
of All Mortgage Loans; Purchase of Lower Tier REMIC 1 Uncertificated
Regular Interests.
|
144
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Section
7.02
|
Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC
1
Uncertificated Regular Interests.
|
147
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||
|
Section
7.03
|
Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests.
|
149
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||
|
Section
7.04
|
Optional
Repurchase Right.
|
150
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ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
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|
Section
8.01
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Limitation
on Rights of Holders.
|
150
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Section
8.02
|
Access
to List of Holders.
|
151
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Section
8.03
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Acts
of Holders of Certificates.
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152
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ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER
SERVICER;
CREDIT RISK MANAGER
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Section
9.01
|
Duties
of the Master Servicer.
|
153
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||
ii
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Section
9.02
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions
Insurance
Policy.
|
153
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|
Section
9.03
|
Master
Servicer’s Financial Statements and Related Information.
|
154
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|
Section
9.04
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Power
to Act; Procedures.
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154
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|
Section
9.05
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Enforcement
of Servicer’s and Master Servicer’s Obligations.
|
157
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||
|
Section
9.06
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Collection
of Taxes, Assessments and Similar Items.
|
157
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||
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Section
9.07
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Termination
of Servicing Agreement; Successor Servicer.
|
158
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||
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Section
9.08
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Master
Servicer Liable for Enforcement.
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159
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|
Section
9.09
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No
Contractual Relationship Between Servicer and Trustee or
Depositor.
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159
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Section
9.10
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Assumption
of Servicing Agreement by Trustee.
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160
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Section
9.11
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Due-on-Sale
Clauses; Assumption Agreements.
|
160
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Section
9.12
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Release
of Mortgage Files.
|
160
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||
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Section
9.13
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
161
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||
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Section
9.14
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Representations
and Warranties of the Master Servicer.
|
163
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Section
9.15
|
Opinion.
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165
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||
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Section
9.16
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Standard
Hazard and Flood Insurance Policies.
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165
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Section
9.17
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Presentment
of Claims and Collection of Proceeds.
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166
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Section
9.18
|
[Reserved].
|
166
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||
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Section
9.19
|
Trustee
To Retain Possession of Certain Documents.
|
166
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||
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Section
9.20
|
[Reserved].
|
166
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||
|
Section
9.21
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Compensation
to the Master Servicer.
|
166
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Section
9.22
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REO
Property.
|
167
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Section
9.23
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Notices
to the Depositor and the Trustee
|
167
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Section
9.24
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Reports
to the Trustee.
|
168
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||
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Section
9.25
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Assessment
of Compliance and Attestation Reports
|
169
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Section
9.26
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Annual
Statement of Compliance with Relevant Servicing Criteria.
|
170
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Section
9.27
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Merger
or Consolidation.
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171
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Section
9.28
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Resignation
of Master Servicer.
|
171
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|
Section
9.29
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Assignment
or Delegation of Duties by the Master Servicer.
|
171
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Section
9.30
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Limitation
on Liability of the Master Servicer and Others.
|
172
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Section
9.31
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Indemnification;
Third-Party Claims.
|
173
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Section
9.32
|
Special
Servicing of Delinquent Mortgage Loans.
|
174
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Section
9.33
|
Alternative
Index.
|
174
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||
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Section
9.34
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Duties
of the Credit Risk Manager.
|
174
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||
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Section
9.35
|
Limitation
Upon Liability of the Credit Risk Manager.
|
176
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||
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Section
9.36
|
Indemnification
by the Credit Risk Manager.
|
176
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Section
9.37
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Removal
of Credit Risk Manager.
|
177
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ARTICLE
X REMIC ADMINISTRATION
|
||||
|
Section
10.01
|
REMIC
Administration.
|
177
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||
|
Section
10.02
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Prohibited
Transactions and Activities.
|
180
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||
|
Section
10.03
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
181
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|
Section
10.04
|
REO
Property.
|
181
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ARTICLE
XI MISCELLANEOUS PROVISIONS
|
||||
|
Section
11.01
|
Binding
Nature of Agreement; Assignment.
|
182
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||
iii
|
Section
11.02
|
Entire
Agreement.
|
182
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||
|
Section
11.03
|
Amendment.
|
182
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||
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Section
11.04
|
Voting
Rights.
|
184
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||
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Section
11.05
|
Provision
of Information.
|
184
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||
|
Section
11.06
|
Governing
Law.
|
185
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||
|
Section
11.07
|
Notices.
|
185
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||
|
Section
11.08
|
Severability
of Provisions.
|
185
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||
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Section
11.09
|
Indulgences;
No Waivers.
|
186
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||
|
Section
11.10
|
Headings
Not To Affect Interpretation.
|
186
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||
|
Section
11.11
|
Benefits
of Agreement.
|
186
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||
|
Section
11.12
|
Special
Notices to the Rating Agencies and any NIMS Insurer.
|
186
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||
|
Section
11.13
|
Conflicts.
|
187
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||
|
Counterparts.
|
187
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|
Section
11.15
|
Transfer
of Servicing.
|
187
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iv
ATTACHMENTS
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Exhibit
A-1
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Form
of Senior Certificate
|
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Exhibit
A-2
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Form
of Class M Certificate
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Exhibit
A-3
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Form
of Class B Certificate
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Exhibit
A-4
|
Form
of Class P Certificate
|
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|
Exhibit
A-5
|
Form
of Class X Certificate
|
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|
Exhibit
A-6
|
Form
of Residual Certificate
|
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|
Exhibit
A-7
|
Form
of Reverse of Certificate
|
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|
Exhibit
B-1
|
Form
of Initial Certification
|
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Exhibit
B-2
|
Form
of Interim Certification
|
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Exhibit
B-3
|
Form
of Final Certification
|
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Exhibit
B-4
|
Form
of Endorsement
|
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Exhibit
C
|
Request
for Release of Documents and Receipt
|
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Exhibit
D-l
|
Form
of Residual Certificate Transfer Affidavit (Transferee)
|
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|
Exhibit
D-2
|
Form
of Residual Certificate Transfer Affidavit (Transferor)
|
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Exhibit
E
|
Description
of Servicing Agreement
|
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|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
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|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
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|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
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|
Exhibit
I
|
[Reserved]
|
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|
Exhibit
J
|
[Reserved]
|
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|
Exhibit
K
|
Description
of Custodial Agreement
|
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|
Exhibit
L
|
Description
of Credit Risk Management Agreement
|
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|
Exhibit
M-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security
|
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|
Exhibit
M-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global Security
to
Restricted Global Security
|
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|
Exhibit
N
|
Interest
Rate Cap Agreement
|
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|
Exhibit
O
|
Swap
Agreement
|
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|
Exhibit
P
|
[Reserved]
|
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|
Exhibit
Q
|
Form
of Back-Up Certification to be Provided by the Trustee to the Depositor
and/or the Master Servicer
|
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|
Exhibit
R-1
|
Form
of Watchlist Report
|
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|
Exhibit
R-2
|
Form
of Loss Severity Report
|
|
|
Exhibit
R-3
|
[Reserved]
|
|
|
Exhibit
R-4
|
Form
of Prepayment Premiums Report
|
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|
Exhibit
R-5
|
Form
of Analytics Report
|
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|
Exhibit
S
|
Servicing
Criteria to be Addressed in Report on Assessment of
Compliance
|
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|
Exhibit
T
|
[Reserved]
|
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|
Exhibit
U
|
Form
of Certification to be Provided by the Credit Risk
Manager
|
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|
Exhibit
V
|
Transaction
Parties
|
|
|
Exhibit
W
|
[Reserved]
|
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|
Exhibit
X
|
Schedule
of Fees for Services as Document Custodian
|
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|
Exhibit
Y
|
Form
of Call Option Notice
|
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|
Exhibit
Z
|
Form
of Purchaser Call Option Notice
|
|
|
Schedule
A
|
Mortgage
Loan Schedule (by Mortgage Pool)
|
|
|
First
Payment Default Mortgage Loans
|
||
|
Schedule
C
|
Delinquency
Default Mortgage Loans
|
v
This
TRUST AGREEMENT, dated as of June 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”), CITIBANK, N.A., a national banking association, as trustee (the
“Trustee”), and XXXXXXX FIXED INCOME SERVICES INC., as credit risk manager (the
“Credit Risk Manager”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Mortgage Loans from 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, the Swap Counterparty and the
Cap
Counterparty. The Depositor, the Trustee, the Master Servicer and the Credit
Risk Manager 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, an election shall be made that the Trust Fund (exclusive of
(i)
the Swap Agreement, (ii) the Swap Account, (iii) the right to receive and the
obligation to pay Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, (iv)
the Basis Risk Reserve Fund, (v) the Supplemental Interest Trust, (vi) the
Interest Rate Cap Agreement, (vii) the Interest Rate Cap Account, (viii) the
Collateral Account, (ix) the right to receive FPD Premiums and (x) the
obligation to pay Class I Shortfalls (collectively, the “Excluded Trust
Assets”)) be treated for federal income tax purposes as comprising four real
estate mortgage investment conduits under Section 860D of the Code (each a
“REMIC” or, in the alternative “REMIC 1,” “REMIC 2,” “REMIC 3,” and “REMIC 4”
(REMIC 4 also being referred to as the “Upper Tier REMIC”)). Any inconsistencies
or ambiguities in this Agreement or in the administration of this Agreement
shall be resolved in a manner that preserves the validity of such REMIC
elections.
Each
Certificate, other than the Class R and Class LT-R Certificates, represents
ownership of a regular interest in the Upper Tier REMIC for purposes of the
REMIC Provisions. In addition, each Certificate, other than the Class R, Class
LT-R, Class X and Class P Certificates, represents (i) the right to receive
payments with respect to any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls and (ii) the obligation to pay Class I Shortfalls. The Class LT-R
Certificate represents ownership of the sole Class of residual interest in
REMIC
1. The Class R Certificate represents ownership of the sole Class of residual
interest in each of REMIC 2, REMIC 3, and the Upper Tier REMIC for purposes
of
the REMIC Provisions.
The
Upper
Tier REMIC shall hold as its assets the uncertificated Lower Tier Interests
in
REMIC 3, other than the Class LT3-R interest, and each such Lower Tier Interest
is hereby designated as a regular interest in REMIC 3 for purposes of the REMIC
Provisions. REMIC 3 shall hold as its assets the uncertificated Lower Tier
Interests in REMIC 2, other than the Class LT2-R interest, and each such Lower
Tier Interest is hereby designated as a regular interest in REMIC 2. REMIC
2
shall hold as its assets the uncertificated Lower Tier Interests in REMIC 1,
and
each such Lower Tier Interest is hereby designated as a regular interest in
REMIC 1. REMIC 1 shall hold as its assets the property of the Trust Fund other
than the Lower Tier Interests in REMIC 1, REMIC 2 and REMIC 3 and the Excluded
Trust Assets.
The
startup day for each REMIC created hereby for purposes of the REMIC Provisions
is the Closing Date. In addition, for purposes of the REMIC Provisions, the
latest possible maturity date for each regular interest in each REMIC created
hereby is the Latest Possible Maturity Date.
REMIC
1:
REMIC
1
shall issue one uncertificated interest in respect of each Mortgage Loan held
by
the Trust Fund on the Closing Date, each of which is hereby designated as a
regular interest in REMIC 1 (the “REMIC 1 Regular Interests”). REMIC 1 shall
also issue the Class LT-R Certificate, which shall represent the sole class
of
residual interest in REMIC 1. Each REMIC 1 Regular Interest shall have an
initial principal balance equal to the Scheduled Principal Balance of the
Mortgage Loan to which it relates and shall bear interest at a per annum rate
equal to the Net Mortgage Rate of such Mortgage Loan. In the event a Qualifying
Substitute Mortgage Loan is substituted for such Mortgage Loan (the “Original
Mortgage Loan”), no amount of interest payable on such Qualifying Substitute
Mortgage Loan shall be distributed on such REMIC 1 Regular Interest at a rate
in
excess of the Net Mortgage Rate of the Original Mortgage Loan.
On
each
Distribution Date, the Trustee shall first pay or charge as an expense of
REMIC 1 all expenses of the Trust Fund for such Distribution Date, other
than any expenses in respect of the Swap Agreement.
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 Lower Tier Interests in REMIC 1 based on the above-described
interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount among the Lower Tier Interests in REMIC 1 in accordance with
the amount of the Principal Remittance Amount attributable to the Mortgage
Loan
corresponding to each such Lower Tier Interest in REMIC 1. All losses on the
Mortgage Loans shall be allocated among the Lower Tier Interests in REMIC 1
in
the same manner that principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums
collected during the preceding Prepayment Period to the Lower Tier Interest
in
REMIC 1 corresponding to the Mortgage Loan with respect to which such amounts
were received.
2
REMIC
2:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 2, each of which (other than the Class LT2-R
Lower Tier Interest) is hereby designated as a regular interest in REMIC 2
(the
“REMIC 2 Regular Interests”):
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
||
|
LT2-A
|
$39,688,115.48
|
(1)
|
||
|
LT2-F1
|
11,150,000.00
|
(2)
|
||
|
LT2-V1
|
11,150,000.00
|
(3)
|
||
|
LT2-F2
|
10,821,500.00
|
(2)
|
||
|
LT2-V2
|
10,821,500.00
|
(3)
|
||
|
LT2-F3
|
10,502,000.00
|
(2)
|
||
|
LT2-V3
|
10,502,000.00
|
(3)
|
||
|
LT2-F4
|
10,191,500.00
|
(2)
|
||
|
LT2-V4
|
10,191,500.00
|
(3)
|
||
|
LT2-F5
|
9,891,000.00
|
(2)
|
||
|
LT2-V5
|
9,891,000.00
|
(3)
|
||
|
LT2-F6
|
9,599,000.00
|
(2)
|
||
|
LT2-V6
|
9,599,000.00
|
(3)
|
||
|
LT2-F7
|
9,315,500.00
|
(2)
|
||
|
LT2-V7
|
9,315,500.00
|
(3)
|
||
|
LT2-F8
|
9,040,500.00
|
(2)
|
||
|
LT2-V8
|
9,040,500.00
|
(3)
|
||
|
LT2-F9
|
8,773,500.00
|
(2)
|
||
|
LT2-V9
|
8,773,500.00
|
(3)
|
||
|
LT2-F10
|
8,514,500.00
|
(2)
|
||
|
LT2-V10
|
8,514,500.00
|
(3)
|
||
|
LT2-F11
|
8,263,000.00
|
(2)
|
||
|
LT2-V11
|
8,263,000.00
|
(3)
|
||
|
LT2-F12
|
8,339,000.00
|
(2)
|
||
|
LT2-V12
|
8,339,000.00
|
(3)
|
||
|
LT2-F13
|
9,291,000.00
|
(2)
|
||
|
LT2-V13
|
9,291,000.00
|
(3)
|
||
|
LT2-F14
|
10,146,500.00
|
(2)
|
||
|
LT2-V14
|
10,146,500.00
|
(3)
|
||
|
LT2-F15
|
10,069,000.00
|
(2)
|
||
|
LT2-V15
|
10,069,000.00
|
(3)
|
||
|
LT2-F16
|
9,873,500.00
|
(2)
|
||
|
LT2-V16
|
9,873,500.00
|
(3)
|
||
|
LT2-F17
|
9,757,500.00
|
(2)
|
||
|
LT2-V17
|
9,757,500.00
|
(3)
|
||
|
LT2-F18
|
9,560,500.00
|
(2)
|
||
|
LT2-V18
|
9,560,500.00
|
(3)
|
||
|
LT2-F19
|
9,406,500.00
|
(2)
|
||
|
LT2-V19
|
9,406,500.00
|
(3)
|
3
|
ClassDesignation
|
Initial
Principal
Balance
|
Interest
Rate
|
||
|
LT2-V20
|
9,210,500.00
|
(3)
|
||
|
LT2-F21
|
8,976,000.00
|
(2)
|
||
|
LT2-V21
|
8,976,000.00
|
(3)
|
||
|
LT2-F22
|
8,742,500.00
|
(2)
|
||
|
LT2-V22
|
8,742,500.00
|
(3)
|
||
|
LT2-F23
|
30,206,000.00
|
(2)
|
||
|
LT2-V23
|
30,206,000.00
|
(3)
|
||
|
LT2-F24
|
16,236,000.00
|
(2)
|
||
|
LT2-V24
|
16,236,000.00
|
(3)
|
||
|
LT2-F25
|
14,166,500.00
|
(2)
|
||
|
LT2-V25
|
14,166,500.00
|
(3)
|
||
|
LT2-F26
|
10,771,000.00
|
(2)
|
||
|
LT2-V26
|
10,771,000.00
|
(3)
|
||
|
LT2-F27
|
8,430,000.00
|
(2)
|
||
|
LT2-V27
|
8,430,000.00
|
(3)
|
||
|
LT2-F28
|
6,674,500.00
|
(2)
|
||
|
LT2-V28
|
6,674,500.00
|
(3)
|
||
|
LT2-F29
|
5,346,000.00
|
(2)
|
||
|
LT2-V29
|
5,346,000.00
|
(3)
|
||
|
LT2-F30
|
4,371,500.00
|
(2)
|
||
|
LT2-V30
|
4,371,500.00
|
(3)
|
||
|
LT2-F31
|
3,551,000.00
|
(2)
|
||
|
LT2-V31
|
3,551,000.00
|
(3)
|
||
|
LT2-F32
|
2,927,000.00
|
(2)
|
||
|
LT2-V32
|
2,927,000.00
|
(3)
|
||
|
LT2-F33
|
2,771,000.00
|
(2)
|
||
|
LT2-V33
|
2,771,000.00
|
(3)
|
||
|
LT2-F34
|
2,614,500.00
|
(2)
|
||
|
LT2-V34
|
2,614,500.00
|
(3)
|
||
|
LT2-F35
|
2,497,500.00
|
(2)
|
||
|
LT2-V35
|
2,497,500.00
|
(3)
|
||
|
LT2-F36
|
2,381,000.00
|
(2)
|
||
|
LT2-V36
|
2,381,000.00
|
(3)
|
||
|
LT2-F37
|
2,263,500.00
|
(2)
|
||
|
LT2-V37
|
2,263,500.00
|
(3)
|
||
|
LT2-F38
|
2,146,000.00
|
(2)
|
||
|
LT2-V38
|
2,146,000.00
|
(3)
|
||
|
LT2-F39
|
2,069,000.00
|
(2)
|
||
|
LT2-V39
|
2,069,000.00
|
(3)
|
||
|
LT2-F40
|
1,912,500.00
|
(2)
|
||
|
LT2-V40
|
1,912,500.00
|
(3)
|
||
|
LT2-F41
|
1,872,500.00
|
(2)
|
||
|
LT2-V41
|
1,872,500.00
|
(3)
|
4
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
||
|
LT2-V42
|
1,756,500.00
|
(3)
|
||
|
LT2-F43
|
1,679,000.00
|
(2)
|
||
|
LT2-V43
|
1,679,000.00
|
(3)
|
||
|
LT2-F44
|
1,599,500.00
|
(2)
|
||
|
LT2-V44
|
1,599,500.00
|
(3)
|
||
|
LT2-F45
|
1,483,000.00
|
(2)
|
||
|
LT2-V45
|
1,483,000.00
|
(3)
|
||
|
LT2-F46
|
1,444,500.00
|
(2)
|
||
|
LT2-V46
|
1,444,500.00
|
(3)
|
||
|
LT2-F47
|
1,365,500.00
|
(2)
|
||
|
LT2-V47
|
1,365,500.00
|
(3)
|
||
|
LT2-F48
|
1,327,000.00
|
(2)
|
||
|
LT2-V48
|
1,327,000.00
|
(3)
|
||
|
LT2-F49
|
1,209,500.00
|
(2)
|
||
|
LT2-V49
|
1,209,500.00
|
(3)
|
||
|
LT2-F50
|
1,170,500.00
|
(2)
|
||
|
LT2-V50
|
1,170,500.00
|
(3)
|
||
|
LT2-F51
|
1,132,000.00
|
(2)
|
||
|
LT2-V51
|
1,132,000.00
|
(3)
|
||
|
LT2-F52
|
1,054,500.00
|
(2)
|
||
|
LT2-V52
|
1,054,500.00
|
(3)
|
||
|
LT2-F53
|
1,014,500.00
|
(2)
|
||
|
LT2-V53
|
1,014,500.00
|
(3)
|
||
|
LT2-F54
|
975,500.00
|
(2)
|
||
|
LT2-V54
|
975,500.00
|
(3)
|
||
|
LT2-F55
|
898,000.00
|
(2)
|
||
|
LT2-V55
|
898,000.00
|
(3)
|
||
|
LT2-F56
|
897,000.00
|
(2)
|
||
|
LT2-V56
|
897,000.00
|
(3)
|
||
|
LT2-F57
|
819,000.00
|
(2)
|
||
|
LT2-V57
|
819,000.00
|
(3)
|
||
|
LT2-F58
|
781,000.00
|
(2)
|
||
|
LT2-V58
|
781,000.00
|
(3)
|
||
|
LT2-F59
|
761,000.00
|
(2)
|
||
|
LT2-V59
|
761,000.00
|
(3)
|
||
|
LT2-F60
|
714,500.00
|
(2)
|
||
|
LT2-V60
|
714,500.00
|
(3)
|
||
|
LT2-F61
|
679,000.00
|
(2)
|
||
|
LT2-V61
|
679,000.00
|
(3)
|
||
|
LT2-F62
|
645,000.00
|
(2)
|
||
|
LT2-V62
|
645,000.00
|
(3)
|
||
|
LT2-F63
|
613,000.00
|
(2)
|
||
|
LT2-V63
|
613,000.00
|
(3)
|
5
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
||
|
LT2-V64
|
584,500.00
|
(3)
|
||
|
LT2-F65
|
554,000.00
|
(2)
|
||
|
LT2-V65
|
554,000.00
|
(3)
|
||
|
LT2-F66
|
527,000.00
|
(2)
|
||
|
LT2-V66
|
527,000.00
|
(3)
|
||
|
LT2-F67
|
501,500.00
|
(2)
|
||
|
LT2-V67
|
501,500.00
|
(3)
|
||
|
LT2-F68
|
475,500.00
|
(2)
|
||
|
LT2-V68
|
475,500.00
|
(3)
|
||
|
LT2-F69
|
452,500.00
|
(2)
|
||
|
LT2-V69
|
452,500.00
|
(3)
|
||
|
LT2-F70
|
431,000.00
|
(2)
|
||
|
LT2-V70
|
431,000.00
|
(3)
|
||
|
LT2-F71
|
8,282,500.00
|
(2)
|
||
|
LT2-V71
|
8,282,500.00
|
(3)
|
||
|
LT2-R
|
(4)
|
(4)
|
||
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for the Class LT2-A Interest shall be the Net WAC Rate.
|
|
(2)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests shall be the lesser of (i)
the
REMIC Swap Rate for such Distribution Date, and (ii) the product
of (a)
the Net WAC Rate and (b) 2.
|
|
(3)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests shall be the excess, if any,
of (i)
the product of (a) the Net WAC Rate and (b) 2, over (ii) the REMIC
Swap
Rate for such Distribution Date and, if no such excess, shall be
zero.
|
|
(4)
|
The
Class LT2-R interest shall not have a principal amount and shall
not bear
interest. The Class LT2-R interest is hereby designated as the sole
class
of residual interest in REMIC 2.
|
On
each
Distribution Date, the Trustee shall distribute the aggregate Interest
Remittance Amount for the two Mortgage Pools (net of the expenses paid by REMIC
1) with respect to each of the Lower Tier Interests in REMIC 2 based on the
above-described interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount with respect to the two Mortgage Pools with respect to the
Lower Tier Interests in REMIC 2, first to the Class LT2-A Interest until its
principal balance is reduced to zero, and then sequentially, to the other Lower
Tier Interests in REMIC 2 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 Lower Tier Interests in REMIC 2 in the same manner that
principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums
collected during the preceding Prepayment Period to the Class LT2-F71 Lower
Tier
Interest.
6
REMIC
3:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 3, each of which (other than the Class LT3-R
interest) is hereby designated as a regular interest in REMIC 3 (the “REMIC 3
Regular Interests”):
|
REMIC
3
Lower
Tier
Class
Designation
|
REMIC
3
Lower
Tier
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of
Certificate(s)
|
|||
|
Class
LT3-A1
|
(1)
|
(3)
|
A1
|
|||
|
Class
LT3-A2
|
(1)
|
(3)
|
A2
|
|||
|
Class
LT3-A3
|
(1)
|
(3)
|
A3
|
|||
|
Class
LT3-A4
|
(1)
|
(3)
|
A4
|
|||
|
Class
LT3-A5
|
(1)
|
(3)
|
A5
|
|||
|
Class
LT3-M1
|
(1)
|
(3)
|
M1
|
|||
|
Class
LT3-M2
|
(1)
|
(3)
|
M2
|
|||
|
Class
LT3-M3
|
(1)
|
(3)
|
M3
|
|||
|
Class
LT3-M4
|
(1)
|
(3)
|
M4
|
|||
|
Class
LT3-M5
|
(1)
|
(3)
|
M5
|
|||
|
Class
LT3-M6
|
(1)
|
(3)
|
M6
|
|||
|
Class
LT3-M7
|
(1)
|
(3)
|
M7
|
|||
|
Class
LT3-M8
|
(1)
|
(3)
|
M8
|
|||
|
Class
LT3-M9
|
(1)
|
(3)
|
M9
|
|||
|
Class
LT3-B1
|
(1)
|
(3)
|
B1
|
|||
|
Class
LT3-B2
|
(1)
|
(3)
|
B2
|
|||
|
Class
LT3-Q
|
(1)
|
(4)
|
N/A
|
|||
|
Class
LT3-IO
|
(2)
|
(2)
|
N/A
|
|||
|
Class
LT3-R
|
(5)
|
(5)
|
R
|
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests in REMIC 3 is a per annum
rate
equal to the weighted average of the interest rates on the Lower
Tier
Interests in REMIC 2 for such Distribution Date, provided,
however, that
for any Distribution Date on which the Class LT3-IO Interest is entitled
to a portion of the interest accruals on a Lower Tier Interest in
REMIC 2
having an “F” in its class designation, as described in footnote two
below, such weighted average shall be computed by first subjecting
the
rate on such Lower Tier Interest in REMIC 2 to a cap equal to Swap
LIBOR
for such Distribution Date.
|
|
(2)
|
The
Class LT3-IO is an interest only class that does not have a principal
balance. For only those Distribution Dates listed in the first column
in
the table below, the Class LT3-IO shall be entitled to interest accrued
on
the Lower Tier Interest in REMIC 2 listed in the second column in
the
table below at a per annum rate equal to the excess, if any, of (i)
the
interest rate for such Lower Tier Interest in REMIC 2 for such
Distribution Date over (ii) Swap LIBOR for such Distribution
Date.
|
|
Distribution
Dates
|
REMIC
2
Class
Designation
|
|
|
2
|
Class
LT2-F1
|
|
|
2-3
|
Class
LT2-F2
|
|
|
2-4
|
Class
LT2-F3
|
|
|
2-5
|
Class
LT2-F4
|
|
|
2-6
|
Class
LT2-F5
|
|
|
2-7
|
Class
LT2-F6
|
7
|
2-8
|
Class
LT2-F7
|
|
|
2-9
|
Class
LT2-F8
|
|
|
2-10
|
Class
LT2-F9
|
|
|
2-11
|
Class
LT2-F10
|
|
|
2-12
|
Class
LT2-F11
|
|
|
2-13
|
Class
LT2-F12
|
|
|
2-14
|
Class
LT2-F13
|
|
|
2-15
|
Class
LT2-F14
|
|
|
2-16
|
Class
LT2-F15
|
|
|
2-17
|
Class
LT2-F16
|
|
|
2-18
|
Class
LT2-F17
|
|
|
2-19
|
Class
LT2-F18
|
|
|
2-20
|
Class
LT2-F19
|
|
|
2-21
|
Class
LT2-F20
|
|
|
2-22
|
Class
LT2-F21
|
|
|
2-23
|
Class
LT2-F22
|
|
|
2-24
|
Class
LT2-F23
|
|
|
2-25
|
Class
LT2-F24
|
|
|
2-26
|
Class
LT2-F25
|
|
|
2-27
|
Class
LT2-F26
|
|
|
2-28
|
Class
LT2-F27
|
|
|
2-29
|
Class
LT2-F28
|
|
|
2-30
|
Class
LT2-F29
|
|
|
2-31
|
Class
LT2-F30
|
|
|
2-32
|
Class
LT2-F31
|
|
|
2-33
|
Class
LT2-F32
|
|
|
2-34
|
Class
LT2-F33
|
|
|
2-35
|
Class
LT2-F34
|
|
|
2-36
|
Class
LT2-F35
|
|
|
2-37
|
Class
LT2-F36
|
|
|
2-38
|
Class
LT2-F37
|
|
|
2-39
|
Class
LT2-F38
|
|
|
2-40
|
Class
LT2-F39
|
|
|
2-41
|
Class
LT2-F40
|
|
|
2-42
|
Class
LT2-F41
|
|
|
2-43
|
Class
LT2-F42
|
|
|
2-44
|
Class
LT2-F43
|
|
|
2-45
|
Class
LT2-F44
|
|
|
2-46
|
Class
LT2-F45
|
|
|
2-47
|
Class
LT2-F46
|
|
|
2-48
|
Class
LT2-F47
|
|
|
2-49
|
Class
LT2-F48
|
|
|
2-50
|
Class
LT2-F49
|
|
|
2-51
|
Class
LT2-F50
|
|
|
2-52
|
Class
LT2-F51
|
|
|
2-53
|
Class
LT2-F52
|
|
|
2-54
|
Class
LT2-F53
|
|
|
2-55
|
Class
LT2-F54
|
|
|
2-56
|
Class
LT2-F55
|
|
|
2-57
|
Class
LT2-F56
|
|
|
2-58
|
Class
LT2-F57
|
|
|
2-59
|
Class
LT2-F58
|
|
|
2-60
|
Class
LT2-F59
|
|
|
2-61
|
Class
LT2-F60
|
|
|
2-62
|
Class
LT2-F61
|
|
|
2-63
|
Class
LT2-F62
|
8
|
2-64
|
Class
LT2-F63
|
|
|
2-65
|
Class
LT2-F64
|
|
|
2-66
|
Class
LT2-F65
|
|
|
2-67
|
Class
LT2-F66
|
|
|
2-68
|
Class
LT2-F67
|
|
|
2-69
|
Class
LT2-F68
|
|
|
2-70
|
Class
LT2-F69
|
|
|
2-71
|
Class
LT2-F70
|
|
|
2-72
|
Class
LT2-F71
|
|
(3)
|
This
interest shall have an initial class principal amount equal to one-half
of
the initial Class Principal Amount of its Corresponding Class of
Certificates.
|
|
(4)
|
This
interest shall have an initial class principal amount equal to the
excess
of (i) the Aggregate Pool Balance as of the Cut-off Date, over (ii)
the
aggregate initial class principal amount of each other regular interest
in
REMIC 3.
|
|
(5)
|
The
Class LT3-R interest is the sole class of residual interests in REMIC
3.
It does not have an interest rate or a principal
balance.
|
On
each
Distribution Date, interest shall be distributed on the Lower Tier Interests
in
REMIC 3 based on the above-described interest rates,
provided,
however,
that
interest that accrues on the Class LT3-Q Interest shall be deferred in an amount
equal to one-half of the increase, if any, in the Overcollateralization Amount
for such Distribution Date. Any interest so deferred shall itself bear interest
at the interest rate for the Class LT3-Q Interest. An amount equal to the
interest so deferred shall be distributed as additional principal on the other
Lower Tier Interests in REMIC 3 having a principal balance in the manner
described under priority (a) below.
On
each
Distribution Date principal shall be distributed, and Realized Losses shall
be
allocated, among the Lower Tier Interests in REMIC 3 in the following order
of
priority:
(a)
First, to the Class LT3-A1, Class LT3-A2, Class LT3-A3, Class LT3-A4, Class
LT3-A5, Class LT3-M1, Class LT3-M2, Class LT3-M3, Class LT3-M4, Class
LT3-M5, Class LT3-M6, Class LT3-M7, Class LT3-M8, Class LT3-M9, Class LT3-B1
and
Class LT3-B2 Interests until the principal balance of each such Lower Tier
Interest equals one-half of the Class Principal Amount of the Corresponding
Class of Certificates immediately after such Distribution Date; and
(b)
Second, to the Class LT3-Q Interest, any remaining amounts.
On
each
Distribution Date, the Trustee shall be deemed to have distributed the
Prepayment Premiums passed through with respect to the Class LT2-F71 Lower
Tier
Interest in REMIC 2 on such Distribution Date to the Class LT3-Q
Interest.
9
The
Certificates:
The
following table sets forth (or describes) the Class designation, Certificate
Interest Rate, initial Class Principal Amount and minimum denomination for
each
Class of Certificates comprising interests in the Trust Fund created hereunder.
|
Class
Designation
|
Certificate
Interest
Rate
|
Initial
Class
Principal
Amount
|
Minimum
Denomination
|
|||
|
Class
A1
|
(1)
|
$415,137,000.00
|
$ 25,000
|
|||
|
Class
A2
|
(2)
|
$110,487,000.00
|
$ 25,000
|
|||
|
Class
A3
|
(3)
|
$ 18,819,000.00
|
$ 25,000
|
|||
|
Class
A4
|
(4)
|
$ 39,086,000.00
|
$ 25,000
|
|||
|
Class
A5
|
(5)
|
$ 14,861,000.00
|
$ 25,000
|
|||
|
Class
M1
|
(6)
|
$ 43,103,000.00
|
$100,000
|
|||
|
Class
M2
|
(7)
|
$ 25,629,000.00
|
$100,000
|
|||
|
Class
M3
|
(8)
|
$ 14,756,000.00
|
$100,000
|
|||
|
Class
M4
|
(9)
|
$ 13,203,000.00
|
$100,000
|
|||
|
Class
M5
|
(10)
|
$ 12,426,000.00
|
$100,000
|
|||
|
Class
M6
|
(11)
|
$ 11,649,000.00
|
$100,000
|
|||
|
Class
M7
|
(12)
|
$ 11,261,000.00
|
$100,000
|
|||
|
Class
M8
|
(13)
|
$ 7,766,000.00
|
$100,000
|
|||
|
Class
M9
|
(14)
|
$ 8,931,000.00
|
$100,000
|
|||
|
Class
B1
|
(15)
|
$ 5,048,000.00
|
$100,000
|
|||
|
Class
B2
|
(16)
|
$ 7,766,000.00
|
$100,000
|
|||
|
Class
X
|
(17)
|
(17)
|
5%
|
|||
|
Class
R
|
(18)
|
(18)
|
100%
|
|||
|
Class
P
|
(19)
|
$100
(20)
|
5%
|
|||
|
Class
LT-R
|
(21)
|
(21)
|
100%
|
|
(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 0.210% and (ii) with respect
to
any Distribution Date on which the Class Principal Amounts of the
Group 2
Senior Certificates are outstanding, the Pool 1 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the Class
Principal Amounts of the Group 2 Senior Certificates have been reduced
to
zero, the Subordinate 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 0.420%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap; therefore,
on any Distribution Date on which the Certificate Interest Rate for
the
Class A1 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from the
Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on the
Class
A1 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A1 Certificates if the REMIC 3 Net
Funds
Cap were substituted for the Net Funds Cap shall be treated as having
been
paid by the Class A1 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
10
|
(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 0.060% and (ii) with respect
to
any Distribution Date on which the Class Principal Amounts of the
Group 1
Senior Certificates are outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the Class
Principal Amounts of the Group 1 Senior Certificates have been reduced
to
zero, the Subordinate 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 0.120%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap; therefore,
on any Distribution Date on which the Certificate Interest Rate for
the
Class A2 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from the
Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on the
Class
A2 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A2 Certificates if the REMIC 3 Net
Funds
Cap were substituted for the Net Funds Cap shall be treated as having
been
paid by the Class A2 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(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 0.130% and (ii) with respect
to
any Distribution Date on which the Class Principal Amounts of the
Group 1
Senior Certificates are outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the Class
Principal Amounts of the Group 1 Senior Certificates have been reduced
to
zero, the Subordinate 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 0.260%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap; therefore,
on any Distribution Date on which the Certificate Interest Rate for
the
Class A3 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from the
Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on the
Class
A3 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A3 Certificates if the REMIC 3 Net
Funds
Cap were substituted for the Net Funds Cap shall be treated as having
been
paid by the Class A3 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(4)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class A4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.170% and (ii) with respect
to
any Distribution Date on which the Class Principal Amounts of the
Group 1
Senior Certificates are outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the Class
Principal Amounts of the Group 1 Senior Certificates have been reduced
to
zero, the Subordinate 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 A4 Certificates
will be LIBOR plus 0.340%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap; therefore,
on any Distribution Date on which the Certificate Interest Rate for
the
Class A4 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from the
Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on the
Class
A4 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A4 Certificates if the REMIC 3 Net
Funds
Cap were substituted for the Net Funds Cap shall be treated as having
been
paid by the Class A4 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
11
|
(5)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class A5 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.250% and (ii) with respect
to
any Distribution Date on which the Class Principal Amounts of the
Group 1
Senior Certificates are outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the Class
Principal Amounts of the Group 1 Senior Certificates have been reduced
to
zero, the Subordinate 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 A5 Certificates
will be LIBOR plus 0.500%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap; therefore,
on any Distribution Date on which the Certificate Interest Rate for
the
Class A5 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from the
Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on the
Class
A5 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A5 Certificates if the REMIC 3 Net
Funds
Cap were substituted for the Net Funds Cap shall be treated as having
been
paid by the Class A5 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(6)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.270% and (ii) the Subordinate
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 M1 Certificates
will be LIBOR plus 0.405%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M1 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M1 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M1
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M1 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(7)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.290% and (ii) the Subordinate
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 M2 Certificates
will be LIBOR plus 0.435%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M2 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M2 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M2
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M2 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(8)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.320% and (ii) the Subordinate
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 M3 Certificates
will be LIBOR plus 0.480%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M3 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M3 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M3
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M3 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
12
|
(9)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.360% and (ii) the Subordinate
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 M4 Certificates
will be LIBOR plus 0.540%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M4 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M4 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M4
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M4 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(10)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M5 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.550% and (ii) the Subordinate
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 M5 Certificates
will be LIBOR plus 0.825%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M5 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M5 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M5
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M5 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(11)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M6 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.850% and (ii) the Subordinate
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 M6 Certificates
will be LIBOR plus 1.275%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M6 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M6 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M6
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M6 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n) hereof.
|
13
|
(12)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M7 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.100% and (ii) the Subordinate
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 M7 Certificates
will be LIBOR plus 3.150%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M7 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M7 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M7
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M7 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(13)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M8 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the Subordinate
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 M8 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M8 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M8 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M8
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M8 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
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|
(14)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M9 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the Subordinate
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 M9 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M9 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M9 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M9
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class M9 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
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(15)
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The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class B1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the Subordinate
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 B1 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class B1 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class B1 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
B1
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class B1 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
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14
|
(16)
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The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class B2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the Subordinate
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 B2 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class B2 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust, as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class B2 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
B2
Certificates if the REMIC 3 Net Funds Cap were substituted for the
Subordinate Net Funds Cap shall be treated as having been paid by
the
Class B2 Certificateholders to the Supplemental Interest Trust, all
pursuant to and as further provided in Section 10.01(n)
hereof.
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(17)
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For
purposes of the REMIC Provisions, Class X Certificates shall have
an
initial principal balance of $16,698,015.48, and the right to receive
distributions of such amount represents a regular interest in the
Upper
Tier REMIC. The Class X Certificate shall also comprise two notional
components, each of which represents a regular interest in the Upper
Tier
REMIC. The first such component has a notional balance that will
at all
times equal the aggregate of the Class Principal Amounts of the Lower
Tier
Interests in REMIC 3, and, for each Distribution Date (and the related
Accrual Period) this notional component shall bear interest at a
per annum
rate equal to the excess, if any, of (i) (a) the weighted average
of the
interest rates on the Lower Tier Interests in REMIC 3 (other than
any
interest-only regular interest) minus (b) the Credit Risk Manager’s Fee
Rate, over (ii) the Adjusted Lower Tier WAC. The second notional
component
represents the right to receive all distributions in respect of the
Class
LT3-IO Interest in REMIC 3 (the “Class LT4-I” interest). In addition, for
purposes of the REMIC Provisions, the Class X Certificate shall represent
beneficial ownership of (i) the Basis Risk Reserve Fund; (ii) the
Supplemental Interest Trust, including the Swap Agreement, the Swap
Account, the Interest Rate Cap Agreement and the Interest Rate Cap
Account, (iii) any FPD Premiums and (iv) an interest in the notional
principal contracts described in Section 10.01(n)
hereof.
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(18)
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The
Class R Certificate will be issued without a Class Principal Amount
and
will not bear interest at a stated rate. The Class R Certificate
represents ownership of the residual interest in the Upper Tier REMIC,
as
well as ownership of the Class LT2-R Interest and Class LT3-R Interest.
The Class R Certificate will be issued as a single Certificate evidencing
the entire Percentage Interest in such
Class.
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(19)
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The
Class P Certificates shall not bear interest at a stated rate. Prepayment
Premiums paid with respect to the Mortgage Loans shall be paid to
the
Holders of the Class P Certificates as provided in Section 5.02(i).
For
purposes of the REMIC Provisions, Class P shall represent a regular
interest in the Upper Tier REMIC.
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(20)
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The
Class P Certificates will have an initial Class P Principal Amount
of
$100.
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(21)
|
The
Class LT-R Certificate will be issued without a Class Principal Amount
and
will not bear interest at a stated rate. The Class LT-R Certificate
represents ownership of the residual interest in REMIC 1. The Class
LT-R
Certificate will be issued as a single Certificate evidencing the
entire
Percentage Interest in such Class.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$776,626,115.48.
In
consideration of the mutual agreements herein contained, the Depositor, the
Seller, the Credit Risk Manager, the Master Servicer and the Trustee hereby
agree as follows:
15
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions. The
following words and phrases, unless the context otherwise requires, shall
have
the following meanings:
10-K
Filing Deadline:
As
defined in Section 6.20(e)(i).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that service
or
master service mortgage loans of the same type and quality as such Mortgage
Loan
in the jurisdiction where the related Mortgaged Property is located, to the
extent applicable to the Trustee (as successor to the Master Servicer) or the
Master Servicer, or (y) as provided in the Servicing Agreement, to the extent
applicable to the Servicer.
Accountant:
A
person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accrual
Period:
With
respect to each Class of LIBOR Certificates and any Distribution Date, the
period beginning on the Distribution Date in the calendar month immediately
preceding the month in which the related Distribution Date occurs (or, in the
case of the first Accrual Period, beginning on June 25, 2007) and ending on
the
day immediately preceding the related Distribution Date, as calculated in
accordance with Section 1.03; with respect to each Class of Lower Tier Interests
and any Distribution Date, the calendar month preceding such Distribution
Date.
Additional
Collateral:
None.
Additional
Form 10-D Disclosure:
As
defined in Section 6.20(d)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 6.20(e)(i).
Additional
Servicer:
Each
affiliate of the Servicer that Services any of the Mortgage Loans and each
Person who is not an affiliate of the Servicer, who Services 10% or more of
the
Mortgage Loans.
Additional
Termination Event:
As
defined in the Swap Agreement and the Interest Rate Cap Agreement, as
applicable.
Adjustable
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for the adjustment
of the Mortgage Rate applicable thereto.
Adjusted
Lower Tier WAC:
For any
Distribution Date (and the related Accrual Period), an amount equal to (i)
two,
multiplied by (ii) the weighted average of the interest rates for such
Distribution Date for the Class LT3-A1, Class LT3-A2, Class LT3-A3, Class
LT3-A4, Class LT3-A5, Class LT3-M1, Class LT3-M2, Class LT3-M3, Class LT3-M4,
Class LT3-M5, Class LT3-M6, Class LT3-M7, Class LT3-M8, Class LT3-M9, Class
LT3-B1, Class LT3-B2 and Class LT3-Q Interests, weighted in proportion to their
Class Principal Amounts as of the beginning of the related Accrual Period and
computed by subjecting the rate on the Class LT3-Q Interest to a cap of 0.00%,
and by subjecting the rate on each of the Class LT3-A1, Class LT3-A2, Class
LT3-A3, Class LT3-A4, Class LT3-A5, Class LT3-M1, Class LT3-M2, Class LT3-M3,
Class LT3-M4, Class LT3-M5, Class LT3-M6, Class LT3-M7, Class LT3-M8, Class
LT3-M9, Class LT3-B1 and Class LT3-B2 Interests to a cap that corresponds to
the
Certificate Interest Rate (determined by substituting the REMIC 3 Net Funds
Cap
for the applicable Net Funds Cap) for the Corresponding Class of Certificates;
provided,
however,
that
for each Class of LIBOR Certificates, the Certificate Interest Rate shall be
multiplied by an amount equal to (a) the actual number of days in the Accrual
Period, divided by (b) 30.
16
Advance:
With
respect to a Mortgage Loan other than a Simple Interest Mortgage Loan, an
advance of the aggregate of payments (other than Balloon Payments) of principal
and interest (net of the Servicing Fee) on one or more Mortgage Loans that
were
due on a 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
or
on behalf of the Master Servicer and the Servicer (or by the Trustee as
successor to the Master Servicer) pursuant to Section 5.04, but only to the
extent that such amount is expected, in the reasonable judgment of the Master
Servicer or the Servicer (or by the Trustee as successor to the Master
Servicer), to be recoverable from collections or recoveries in respect of such
Mortgage Loans. With respect to a Simple Interest Mortgage Loan, an advance
of
an amount equal to the interest accrual on such Simple Interest Mortgage Loan
through the related Due Date but not received as of the close of business on
the
related Determination Date (net of the Servicing Fee) required to be made by
or
on behalf of the Master Servicer or the Servicer (or by the Trustee as successor
to the Master Servicer) pursuant to Section 5.04, but only to the extent that
such amount is expected, in the reasonable judgment of the Master Servicer
or
the Servicer (or by the Trustee as successor to the Master Servicer), to be
recoverable from collections or recoveries in respect of such Simple Interest
Mortgage Loans.
Adverse
REMIC Event:
Either
(i) the 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) the imposition of any tax, including the tax imposed
under Section 860F(a)(1) of the Code on prohibited transactions and the tax
imposed under Section 860G(d) of the Code on certain contributions to a REMIC,
on any REMIC created hereunder to the extent such tax would be payable from
assets held as part of the Trust Fund.
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
Expense Rate:
Not
applicable.
17
Aggregate
Overcollateralization Release Amount:
With
respect to any Distribution Date, the lesser of (x) the aggregate of the
Principal Remittance Amounts for each Mortgage Pool for such Distribution Date
and (y) the amount, if any, by which (i) the Overcollateralization Amount for
such date, calculated for this purpose on the basis of the assumption that
100%
of the aggregate of the Principal Remittance Amounts for such Distribution
Date
is applied on such date in reduction of the aggregate Certificate Principal
Amount of the Certificates, exceeds (ii) the Targeted Overcollateralization
Amount for such Distribution Date.
Aggregate
Pool Balance:
As of
any date of determination, the aggregate of the Pool Balances of Pool 1 and
Pool
2 on such date.
Aggregate
Voting Interests:
The
aggregate of the Voting Interests of all the Certificates under this
Agreement.
Agreement:
This
Trust Agreement and all amendments and supplements hereto.
Anniversary
Year:
The
one-year period beginning on the Closing Date and ending on the first
anniversary thereof, and each subsequent one-year period beginning on the day
after the end of the preceding Anniversary Year and ending on the next
succeeding anniversary of the Closing Date.
Applied
Loss Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the aggregate
Certificate Principal Amount of the LIBOR 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 Aggregate 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, 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 Custodian nor the Trustee shall be responsible for determining
whether any such assignment is in recordable form.
Aurora:
Aurora
Loan Services LLC.
Authenticating
Agent:
Any
authenticating agent appointed by the Trustee pursuant to Section
6.10.
Authorized
Officer:
Any
Person who may execute an Officer’s Certificate on behalf of the
Depositor.
18
B1
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,
Class
M5, Class M6, Class M7, Class M8 and Class M9 Certificates, in each case after
giving effect to distributions on such Distribution Date and (ii) the Class
Principal Amount of the Class B1 Certificates immediately prior to such
Distribution Date exceeds (y) the B1 Target Amount for such Distribution
Date.
B1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 93.70% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) the Overcollateralization Floor.
B2
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,
Class
M5, Class M6, Class M7, Class M8, Class M9, and Class B1 Certificates, in each
case after giving effect to distributions on such Distribution Date and (ii)
the
Class Principal Amount of the Class B2 Certificates immediately prior to such
Distribution Date exceeds (y) the B2 Target Amount for such Distribution
Date.
B2
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 95.70% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) the Overcollateralization Floor.
Back-Up
Certification:
As
defined in Section 6.20(e)(iii).
Balloon
Mortgage Loan:
Any
Mortgage Loan having an original term to maturity that is shorter than its
amortization schedule, and a final Scheduled Payment that is disproportionately
large in comparison to other Scheduled Payments.
Balloon
Payment:
The
final Scheduled Payment in respect of a Balloon Mortgage Loan.
Bank:
Xxxxxx
Brothers Bank, FSB and its successors and assigns.
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.
19
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
Basis
Risk Payment:
With
respect to any Distribution Date, the sum of (i) any Basis Risk Shortfall for
such Distribution Date, (ii) any Unpaid Basis Risk Shortfall for such
Distribution Date and (iii) any Required Reserve Fund Deposit for such
Distribution Date. The amount of the Basis Risk Payment for any Distribution
Date cannot exceed the amount of Monthly Excess Cashflow otherwise available
for
distribution pursuant to Section 5.02(f)(iv) of this Agreement.
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, the amount
by which the amount of interest calculated at the Certificate Interest Rate
applicable to such Class for such date, determined without regard to the Pool
1
Net Funds Cap, Pool 2 Net Funds Cap or Subordinate Net Funds Cap, as applicable,
for such date but subject to a cap equal to the applicable Maximum Interest
Rate, exceeds the amount of interest calculated with regard to the Pool 1 Net
Funds Cap, Pool 2 Net Funds Cap or Subordinate Net Funds Cap, as
applicable.
Benefit
Plan Opinion:
An
Opinion of Counsel satisfactory to the Depositor and the Trustee to the effect
that any proposed transfer of Certificates will not (i) cause the assets of
the
Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the Depositor
or the Trustee, respectively.
Bid
Due Date:
As
defined in Section 7.01(d).
Bid
Holder:
As
defined in Section 7.01(d).
Bid
Month:
As
defined in Section 7.01(d).
Bid
Price:
As
defined in Section 7.01(d).
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, each Class of LIBOR Certificates and the
Class X and Class P Certificates constitutes Book-Entry Certificates.
Bulk
PMI Policy:
Not
applicable.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in New York, New York or, if other than New York or the city in which the
Corporate Trust Office of the Trustee is located or the State of Colorado are
closed, or (iii) with respect to any Servicer Remittance Date or any Servicer
reporting date, the States specified in the definition of “Business Day” in the
Servicing Agreement, are authorized or obligated by law or executive order
to be
closed.
20
Call
Option:
As
defined in Section 7.01(b).
Call
Option Holder:
At any
date of determination, each holder of any NIM Residual Securities (if any such
NIM Residual Securities have been issued and are outstanding), or if no NIM
Securities are outstanding, each Holder of a Class X Certificate.
Call
Option Notice:
As
defined in Section 7.01(d).
Cap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Interest Rate Cap
Agreement, and any successor in interest or assigns. Initially, the Cap
Counterparty shall be Swiss Re Financial Products Corporation.
Cap
Replacement Receipts:
As
defined in Section 5.09(b).
Cap
Replacement Receipts Account:
As
defined in Section 5.09(b).
Cap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Interest Rate
Cap Agreement, the payment required to be made by the Cap Counterparty to the
Supplemental Interest Trust pursuant to the terms of the Interest Rate Cap
Agreement, and any unpaid amounts due on previous Interest Rate Cap Payment
Dates and accrued interest thereon as provided in the Interest Rate Cap
Agreement, as calculated by the Cap Counterparty and furnished to the
Trustee.
Cap
Termination Receipts:
As
defined in Section 5.09(b).
Cap
Termination Receipts Account:
As
defined in Section 5.09(b).
Carryforward
Interest:
With
respect to any Class of LIBOR Certificates and any Distribution Date, 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 for
the related Accrual Period at the applicable Certificate Interest
Rate.
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
Interest Rate:
With
respect to each Class of Certificates and any Distribution Date, the applicable
per annum rate set forth or described under the heading “The Certificates” in
the Preliminary Statement hereto.
21
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 LIBOR Certificate, the initial Certificate Principal Amount
thereof on the Closing Date, less the amount of all principal distributions
previously distributed with respect to such Certificate and, in the case of
the
Subordinate Certificates, any Applied Loss Amount previously allocated to such
Certificate; provided,
however,
that on
each Distribution Date on which a Subsequent Recovery is distributed, the
Certificate Principal Amount of any Class of Subordinate Certificates whose
Certificate Principal Amount has previously been reduced by application of
Applied Loss Amounts will be increased, sequentially, 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 Distribution Date and (2) the total
amount of any Subsequent Recovery distributed on such Distribution Date to
Certificateholders, after application for this purpose to any more senior
Classes of Certificates. The Class X, Class R and Class LT-R Certificates are
issued without Certificate Principal Amounts. The Class P Certificates are
issued with an initial Class P Principal Amount of $100.
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(e)(iv).
Certifying
Person:
As
defined in Section 6.20(e)(iv).
Civil
Relief Act:
The
Servicemembers Civil Relief Act, as amended, or any similar state or local
statute.
Class:
All
Certificates, in the case of the Upper Tier REMIC, all interests bearing the
same class designation, and, in the case of REMIC 1, REMIC 2 and REMIC 3, all
Lower Tier Interests, bearing the same class designation.
Class
B Certificates:
Collectively, the Class B1 and Class B2 Certificates.
Class
I Shortfalls:
As
defined in Section 10.01(n) hereof. For purposes of clarity, the Class I
Shortfall for any Distribution Date shall equal the amount payable to the Swap
Counterparty on such Distribution Date in excess of the amount payable on the
Class LT3-IO interest in the REMIC 3 on such Distribution Date, all as further
provided in Section 10.01(n) hereof.
Class
LT-R Certificate:
Each
Class LT-R Certificate executed by the Trustee and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto as
Exhibit A and evidencing the ownership of the residual interest in REMIC
1.
22
Class
M Certificates:
Collectively, the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6,
Class M7, Class M8 and Class M9 Certificates.
Class
M1 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 (other than the Class M1 Certificates) and the
Overcollateralization Amount for such Distribution Date (which, 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 Aggregate Pool Balance for such Distribution Date, in each
case
after giving effect to distributions on such Distribution Date.
Class
Notional Amount:
Not
applicable.
Class
P Principal Amount:
As of
the Closing Date, $100.
Class
Principal Amount:
With
respect to any Class of LIBOR Certificates and any date of determination, the
aggregate of the Certificate Principal Amounts of all Certificates of such
Class
on such date. With respect to the Class P Certificate, the Class P Principal
Amount. With respect to the Class X, Class LT-R and Class R Certificates, zero.
With respect to any Lower Tier Interest, the initial Class Principal Amount
as
shown or described in the table set forth in the Preliminary Statement to this
Agreement for the issuing REMIC, as reduced by principal distributed with
respect to such Lower Tier Interest and Realized Losses allocated to such Lower
Tier Interest.
Class
R Certificate:
Each
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 Class LT2-R Interest, Class LT3-R Interest
and the residual interest in the Upper Tier REMIC.
Class
X Distributable Amount:
With
respect to any Distribution Date, the amount of interest that has accrued on
the
Class X Notional Balance, as described in the Preliminary Statement, but that
has not been distributed prior to such date. In addition, such amount shall
include the initial Overcollateralization Amount of $16,698,015.48
($16,698,115.48 less $100 of such amount allocated to the Class P Certificates)
to the extent such amount has not been distributed on an earlier Distribution
Date as part of the Aggregate Overcollateralization Release Amount.
Class
X Notional Balance:
With
respect to any Distribution Date (and the related Accrual Period) the aggregate
principal balance of the regular interests in REMIC 3 (other than Class LT3-IO)
as specified in the Preliminary Statement hereto.
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.
23
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:
June
29, 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.
Collateral
Account:
The
account maintained by the Trustee in accordance with the provisions of Section
5.07(c).
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
United States Securities and Exchange Commission.
Compensating
Interest Payment:
With
respect to any Distribution Date, an amount equal to the aggregate amount of
any
Prepayment Interest Shortfalls required to be paid by the Servicer with respect
to such Distribution Date. The Master Servicer (solely in its capacity as master
servicer) shall not be responsible for making any Compensating Interest
Payment.
Controlling
Person:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
Conventional
Loan:
A
Mortgage Loan that is not insured by the United States Federal Housing
Administration or guaranteed by the United States Department of Veterans
Affairs.
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).
24
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 (a) at which Certificates may
be
presented for transfer and exchange and for presentment and surrender for the
final distributions thereon is located at Citibank, N.A., 000 Xxxx Xxxxxx,
00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: 15th Floor Window and (b) for all
other purposes, Citibank, N.A., 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx
Xxxx 00000, Attention: Agency and Trust BNC 2007-3, or such other address that
the Trustee may designate from time to time by notice to the Certificateholders,
the Depositor and the Master Servicer.
Corresponding
Class:
The
Class of Certificates that corresponds to a Class of interests in REMIC 3 or
REMIC 4, as provided in the Preliminary Statement.
Credit
Risk Management Agreement:
The
credit risk management agreement dated as of the Closing Date, entered into
by
the Servicer and the Credit Risk Manager, identified on Exhibit L attached
hereto.
Credit
Risk Manager:
Xxxxxxx
Fixed Income Services Inc., a Colorado corporation, and its successors and
assigns.
Credit
Risk Manager’s Fee:
With
respect to any Distribution Date and each Mortgage Loan, an amount equal to
the
product of (a) one twelfth, (b) the Credit Risk Manager’s Fee Rate and (c) the
Scheduled Principal Balance of such Mortgage Loan as of the first day of the
related Collection Period.
Credit
Risk Manager’s Fee Rate:
0.009%
per annum.
Credit
Support Annex:
The
credit support annex to the Swap Agreement and the Interest Rate Cap Agreement
dated as of June 29, 2007, between the Trustee, not in its individual
capacity but solely as trustee on behalf of the Supplemental Interest Trust,
the
Swap Counterparty and the Cap Counterparty.
Cumulative
Loss Trigger Event:
A
Cumulative Loss Trigger Event shall have occurred with respect to any
Distribution Date if the fraction, expressed as a percentage, obtained by
dividing (x) 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 by (y) the Cut-off Date Balance exceeds the applicable
percentages described below with respect to such Distribution Date:
|
Distribution
Date
|
Loss
Percentage
|
|
|
July
2009 to June 2010
|
1.35%
for the first month, plus
an
additional 1/12th
of
1.70% for each month thereafter
|
|
|
July
2010 to June 2011
|
3.05%
for the first month, plus
an
additional 1/12th
of
1.75% for each month thereafter
|
|
|
July
2011 to June 2012
|
4.80%
for the first month, plus
an
additional 1/12th
of
1.45% for each month thereafter
|
|
|
July
2012 to June 2013
|
6.25%
for the first month, plus
an
additional 1/12th
of
0.75% for each month thereafter
|
|
|
July
2013 and thereafter
|
7.00%
|
25
Current
Interest:
With
respect to any Class of LIBOR 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 of such Class
immediately prior to such Distribution Date.
Custodial
Account:
Any
custodial account (other than an Escrow Account) established and maintained
by
the Servicer pursuant to the Servicing Agreement.
Custodial
Agreement:
The
custodial agreement identified on Exhibit K hereto, and any custodial agreement
subsequently executed by the Trustee and acknowledged by the Master Servicer
substantially in the form thereof.
Custodial
Compensation:
The
transactional fees or charges and reimbursement of out-of-pocket expenses paid
to or allowed the Custodian pursuant to the Schedule of Fees for Services as
Document Custodian attached hereto as Exhibit X.
Custodian:
The
custodian appointed by the Trustee pursuant to the Custodial Agreement, and
any
successor thereto. The initial Custodian is Deutsche Bank National Trust
Company.
Cut-off
Date:
June 1,
2007.
Cut-off
Date Balance:
The
Aggregate Pool Balance as of the Cut-off Date.
DBRS:
DBRS,
Inc., or any successor in interest.
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.
26
Deferred
Amount:
With
respect to any Distribution Date and each Class of the Subordinate Certificates,
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 reimbursed in respect thereof and (2) the
amount by which the Class Principal Amount of such Class has been increased
due
to any Subsequent Recovery.
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
Default Mortgage Loan:
Any
Mortgage Loan listed on Schedule C, which was 29 days Delinquent as of the
Cut-off Date and which is not current in payment on or before June 30,
2007.
Delinquency
Event:
Any
Distribution Date on which the Rolling Three Month Delinquency Rate as of the
last day of the immediately preceding calendar month equals or exceeds (1)
34.85% of the Senior Enhancement Percentage for such Distribution Date or (2)
with respect to any Distribution Date on or after which the aggregate Class
Principal Amount of the Senior Certificates has been reduced to zero, 45.95%
of
the Class M1 Enhancement Percentage for such Distribution Date.
Delinquency
Rate:
With
respect to any calendar month, the fraction, expressed as a percentage, the
numerator of which is the aggregate outstanding principal balance of (i) all
Mortgage Loans 60 days Delinquent or more (including all Mortgage Loans 60
days
Delinquent or more for which the Mortgagor has filed for Bankruptcy after the
Closing Date) and (ii) each Mortgage Loan in foreclosure and all REO Properties
as of the close of business on the last day of such month, and the denominator
of which is the Aggregate Pool Balance for such Distribution Date determined
as
of the last day of the related Collection Period (after giving effect to any
prepayments received during the related Prepayment Period).
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. 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.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation having its
principal place of business in New York, or its successors in
interest.
27
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 90 days or more without giving effect to any grace period permitted
by
the related Mortgage Note or for which the Servicer or the Trustee 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 July 2007.
Distribution
Date Statement:
As
defined in Section 4.03(a).
Distribution
Report:
As
defined in Section 6.20(d)(i).
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 or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated no lower than
P-1
by Xxxxx’x, F-1 by Fitch and A-1 by S&P (or comparable ratings if Xxxxx’x,
Fitch and S&P are not the Rating Agencies) at the time any amounts are held
on deposit therein; provided, that following a downgrade, withdrawal, or
suspension of such institution’s rating above, each account shall promptly (and
in any case within not more than 30 calendar days) be moved to one or more
segregated trust accounts in the trust department of such institution, or to
an
account at another institution that complies with the above requirements, or
(iii) a segregated trust account or accounts (which shall be a “special deposit
account”) maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity,
in a
manner acceptable to the Trustee and the Rating Agencies. Eligible Accounts
may
bear interest.
Eligible
Investments:
Any one
or more of the following obligations or securities:
(i)
direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii)
federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
28
(iii)
repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
GNMA, FNMA or FHLMC with any registered broker/dealer subject to Securities
Investor 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 (a)
one
of the two highest short-term credit rating categories of S&P and Xxxxx’x
and (b) the highest short-term rating category of Fitch (if Fitch is a Rating
Agency); provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the Aggregate 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;
(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 rating such investment 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 Citibank, N.A. (the “Bank”, for purposes of this
paragraph) in its capacity other than as Trustee, the Trustee, the Master
Servicer, any NIMS Insurer or an affiliate thereof serves as an investment
advisor, administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (x) the Bank, the Trustee, the Master
Servicer, any NIMS Insurer or any affiliate thereof charges and collects fees
and expenses from such funds for services rendered, (y) the Bank, the Trustee,
the Master Servicer, any NIMS Insurer 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. The Bank or an affiliate thereof is authorized hereby
to
charge and collect from the Trustee such fees as are collected from all
investors in such funds for services rendered to such funds (but not to exceed
investment earnings thereon);
29
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations, provided
that any
such investment will be a “permitted investment” within the meaning of Section
860G(a)(5) of the Code.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
ERISA-Restricted
Certificate:
Any
Class B1, Class B2, Class P, Class X, Class R or Class LT-R Certificate, and
any
Offered Certificate which does not have a rating of BBB- or above , BBB (low)
or
above or Baa3 or above.
ERISA-Restricted
Trust Certificate:
Any
Senior Certificate or Class M Certificate.
Errors
and Omission Insurance Policy:
The
errors or omission insurance policy required to be obtained by the Servicer
satisfying the requirements of the Servicing Agreement.
Escrow
Account:
Any
account established and maintained by the Servicer pursuant to the Servicing
Agreement.
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).
30
Exchange
Act:
The
Securities and Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
Excluded
Trust Assets:
As
described in the Preliminary Statement.
Xxxxxx
Xxx or FNMA:
Xxxxxx
Mae, 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 the Servicer satisfying the
requirements of the Servicing Agreement.
Final
Scheduled Distribution Date:
With
respect to each Class of Certificates, the Distribution Date occurring in July
2037.
Financial
Intermediary:
A
broker, dealer, bank or other financial institution or other Person that clears
through or maintains a custodial relationship with a Clearing Agency
Participant.
First
Payment Default Mortgage Loan:
Any
Mortgage Loan listed in Schedule B, as to which the related Mortgagor fails
to
make the first Scheduled Payment that is due on such Mortgage Loan within one
calendar month following the date upon which the first Scheduled Payment was
due. By way of example, a first Scheduled Payment due on July 1, 2007 must
be
made by the Mortgagor on or before July 31, 2007.
Fitch:
Fitch,
Inc., or any successor in interest.
Fixed
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for a fixed rate
of
interest throughout the term of such Note.
Form
8-K Disclosure Information:
As
defined in Section 6.20(f)(i).
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
FPD
Premium:
With
respect to any First Payment Default Mortgage Loan or Delinquency Default
Mortgage Loan purchased by the Seller, the excess, if any of the FPD Purchase
Price over the Purchase Price for such Mortgage Loan.
FPD
Purchase Price:
With
respect to any First Payment Default Mortgage Loan or Delinquency Default
Mortgage Loan, an amount equal to the sum of (a) 102.00% of the unpaid principal
balance of such Mortgage Loan and (b) accrued interest thereon at the applicable
Mortgage Rate from the date as to interest was last paid to (but not including)
the Due Date in the Collection Period immediately preceding the related
Distribution Date.
31
Xxxxxxx
Mac or FHLMC:
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.
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
GNMA:
The
Government National Mortgage Association, a wholly owned corporate
instrumentality of the United States within HUD.
Group:
The
Group 1 Senior Certificates or the Group 2 Senior Certificates, as the context
requires.
Group
1 Senior Certificates:
The
Class A1 Certificates.
Group
2 Senior Certificates:
Collectively, the Class A2, Class A3, Class A4 and Class A5
Certificates.
Holder
or
Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or giving
any consent pursuant to this Agreement, any Certificate registered in the name
of the Depositor, the Trustee, the Master Servicer, the Servicer or the Credit
Risk Manager or any Affiliate thereof shall be deemed not to be outstanding
in
determining whether the requisite percentage necessary to effect any such
consent has been obtained, except that, in determining whether the Trustee
shall
be protected in relying upon any such consent, only Certificates which a
Responsible Officer of the Trustee knows to be so owned shall be disregarded.
The Trustee and any NIMS Insurer may request and conclusively rely on
certifications by the Depositor, the Master Servicer, the Servicer or the Credit
Risk Manager in determining whether any Certificates are registered to an
Affiliate of the Depositor, the Master Servicer, the Servicer or the Credit
Risk
Manager. After a Section 7.01(c) Purchase Event, other than in Sections 5.02(b)
through (g) and 11.03(a) and (b) and, except in the case of the Class LT-R
Certificates, Sections 3.03, 3.04, 3.05, 3.06, 3.07 and 3.09 herein, all
references in this Agreement to “Holder” or “Certificateholder” shall be deemed
to be references to the LTURI-holder, as recorded on the books of the
Certificate Registrar, as holder of the Lower Tier Uncertificated REMIC 1
Regular Interests.
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with
respect to any other Person, a Person who (a) is in fact independent of another
specified Person and any Affiliate of such other Person, (b) does not have
any
material direct financial interest in such other Person or any Affiliate of
such
other Person, (c) is not connected with such other Person or any Affiliate
of
such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (d) is not a member
of the immediate family of a Person defined in clause (b) or (c)
above.
32
Index:
The
index specified in the related Mortgage Note for calculation of the Mortgage
Rate thereof.
Initial
LIBOR Rate:
5.32000%.
Initial
Optional Termination Date:
The
first Distribution Date following the date on which the Aggregate Pool Balance
is less than 10.00% of the Cut-off Date Balance.
Initial
Sale Date:
The
date on which the Mortgage Loan was sold by the Transferor to the Bank, as
specified in the Mortgage Loan Schedule.
Insurance
Fee Rate:
Not
applicable.
Insurance
Policy:
Any
standard hazard insurance policy, flood insurance policy, earthquake insurance
policy or title insurance policy relating to the Mortgage Loans or the Mortgaged
Properties, to be in effect as of the Closing Date or thereafter during the
term
of this Agreement.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i) to cover
expenses incurred by or on behalf of the Servicer or 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 law or the related Mortgage Note.
Interest
Rate Cap Account:
The
account created pursuant to Section 5.07(b).
Interest
Rate Cap Agreement:
The
interest rate cap agreement dated June 29, 2007 entered into by the Trustee
on behalf of the Supplemental Interest Trust and the Cap Counterparty, which
agreement provides for the monthly payment specified therein to the Trustee
(for
the benefit of the Certificateholders) commencing with the Distribution Date
in
August 2008 and ending on the Distribution Date in June 2012, by the Cap
Counterparty, but subject to the conditions set forth therein together with
any
schedules, confirmations, credit support annex or other agreements relating
thereto, attached hereto as Exhibit N.
Interest
Rate Cap Amount:
With
respect to each Distribution Date, the amount of any Interest Rate Cap Payment
deposited into the Interest Rate Cap Account and any interest earnings
thereon.
Interest
Rate Cap Payment:
With
respect to each Distribution Date, any payment required to be made by the Cap
Counterparty to the Supplemental Interest Trust pursuant to the terms of the
Interest Rate Cap Agreement.
Interest
Rate Cap Payment Date:
For so
long as the Interest Rate Cap Agreement is in effect or any amounts remain
unpaid thereunder, the Business Day immediately preceding each Distribution
Date.
33
Interest
Remittance Amount:
With
respect to each Mortgage Pool and any Distribution Date, an amount equal to
(a)
the sum of (1) all interest collected (other than Payaheads and Prepayment
Premiums) or advanced in respect of Scheduled Payments on the Mortgage Loans
in
such Mortgage Pool during the related Collection Period by the Servicer, the
Master Servicer or the Trustee (solely in its capacity as successor master
servicer), minus
(x) the
Servicing Fee with respect to such Mortgage Loans in such Mortgage Pool and
(y)
previously unreimbursed Advances due to the 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 such Mortgage Loans, (2) any amounts actually
paid by the Servicer with respect to Prepayment Interest Shortfalls and any
Compensating Interest Payments with respect to such Mortgage Loans and the
related Prepayment Period, (3) the portion of any Purchase Price (or FPD
Purchase Price (excluding any FPD Premiums) payable with respect to a First
Payment Default Mortgage Loan or Delinquency Default Mortgage Loan) or
Substitution Amount paid with respect to such Mortgage Loans during the related
Prepayment Period allocable to interest and (4) all Net Liquidation
Proceeds, Subsequent Recoveries, Insurance Proceeds and any other recoveries
collected with respect to such Mortgage Loans during the related Prepayment
Period, to the extent allocable to interest, for each Mortgage Pool,
as
reduced by (b)
the
product of (i) the applicable Pool Percentage for such Distribution Date and
(ii) any other costs, expenses or liabilities reimbursable to the Trustee,
the Master Servicer, the Custodian and the Servicer to the extent provided
in
this Agreement, the Servicing Agreement and the Custodial Agreement;
provided,
however,
that in
the case of the Trustee, such reimbursable amounts to the Trustee pursuant
to
Section 4.04(b)(i) may not exceed $200,000 during any Anniversary Year. In
the
event that the Trustee incurs reimbursable amounts in excess of $200,000, it
may
seek reimbursement for such amounts in subsequent Anniversary Years, but in
no
event shall more than $200,000 be reimbursed to the Trustee per Anniversary
Year. Notwithstanding the foregoing, costs and expenses incurred by the Trustee
pursuant to Section 6.14(a) in connection with any transfer of servicing shall
be excluded from the $200,000 per Anniversary Year limit on reimbursable
amounts. For the avoidance of doubt, (i) the Interest Remittance Amount
available on each Swap Payment Date for distributions to the Swap Account shall
be equal to the Interest Remittance Amount on the related Distribution Date
and
(ii) the Interest Remittance Amount for each Distribution Date shall be
calculated without regard to any distributions to the Swap Account on the
related Swap Payment Date.
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notices of transfer or
equivalent instrument.
Item
1122 Responsible Party:
With
respect to the criteria to be addressed under Item 1122 of Regulation AB, the
attesting party as indicated in the table attached hereto at Exhibit
S.
JPMorgan:
JPMorgan Chase Bank, National Association, or any successor in
interest.
Latest
Possible Maturity Date:
The
Distribution Date occurring in July 2042.
LBH:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
34
LIBOR:
(a) With
respect to the first Accrual Period, the Initial LIBOR Rate. With respect to
each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Trustee on the basis of the
“Interest Settlement Rate” set by the British Bankers’ Association (the “BBA”)
for one-month United States dollar deposits, as such rates appear on (1) the
Bloomberg L.P. page “US0001M” (as found on page “BBAM”) or (2) if such offered
rates do not appear on the Bloomberg L.P. page “US0001M,” the Reuters Screen
“LIBOR01,” in either case as of 11:00 a.m. (London time) on such LIBOR
Determination Date.`
(b) If
any
such rate is not published for such LIBOR Determination Date, LIBOR for such
date will be the most recently published Interest Settlement Rate published
on
the Bloomberg L.P. page “US0001M.” 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.
(c) The
establishment of LIBOR by the Trustee and the Trustee’s subsequent calculation
of the Certificate Interest Rate applicable to the LIBOR Certificates for the
relevant Accrual Period, in the absence of manifest error, will be final and
binding.
LIBOR
Business Day:
Any day
on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
LIBOR
Certificate:
Any
Class A1, Class A2, Class A3, Class A4, Class A5, Class M1, Class M2, Class
M3,
Class M4, Class M5, Class M6, Class M7, Class M8, Class M9, Class B1 or Class
B2
Certificate.
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period for any LIBOR Certificate.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Master Servicer or the Servicer has
determined that all amounts that it expects to recover on behalf of the Trust
Fund from or on account of such Mortgage Loan have been recovered (exclusive
of
any possibility of a deficiency judgment).
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or the Servicer in connection
with the liquidation of any defaulted Mortgage Loan 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 or otherwise, or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any amounts remaining in the
related Escrow Account.
35
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination plus the principal balance of each mortgage loan
senior thereto based on the most recent information avaialbe to the Seller,
or
such other date as is specified, to the Original Value of the related Mortgaged
Property.
Lower
Tier Interest:
As
described in the Preliminary Statement.
Lower
Tier REMIC 1 Uncertificated Regular Interests:
Lower
Tier Interests of REMIC 1 constituting regular interests held in uncertificated
form pursuant to a Section 7.01(c) Purchase Event.
LPMI
Policy:
Not
applicable.
LTURI-holder:
The
holder of Lower Tier REMIC 1 Uncertificated Regular Interests, which upon the
occurrence of a Section 7.01(c) Purchase Event shall be the Master Servicer
or
its designee, and including any trustee in its capacity as trustee of any
privately placed securitization.
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 (ii) the Class Principal Amount of the Class M1
Certificates immediately prior to such Distribution Date exceeds (y) the M1
Target Amount for such Distribution Date.
M1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 65.20% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) the Overcollateralization Floor.
M2
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 after giving
effect to distributions on such Distribution Date, and (ii) the Class Principal
Amount of the Class M2 Certificates immediately prior to such Distribution
Date
exceeds (y) the M2 Target Amount for such Distribution Date.
M2
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 71.80% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) 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 and Class M2 Certificates
after giving effect to distributions on such Distribution Date, and (ii) the
Class Principal Amount of the Class M3 Certificates immediately prior to such
Distribution Date exceeds (y) the M3 Target Amount for such Distribution
Date.
M3
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 75.60% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) 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
(ii) the Class Principal Amount of the Class M4 Certificates immediately prior
to such Distribution Date exceeds (y) the M4 Target Amount for such Distribution
Date.
M4
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 79.00% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) 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 (ii) the Class Principal Amount of the Class M5
Certificates immediately prior to such Distribution Date exceeds (y) the M5
Target Amount for such Distribution Date.
M5
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 82.20% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) 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, Class M2, Class M3, Class M4 and
Class M5 Certificates, in each case after giving effect to distributions on
such
Distribution Date and (ii) the Class Principal Amount of the Class M6
Certificates immediately prior to such Distribution Date exceeds (y) the M6
Target Amount for such Distribution Date.
M6
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 85.20% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) the Overcollateralization Floor.
M7
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,
Class
M5 and Class M6 Certificates, in each case after giving effect to distributions
on such Distribution Date and (ii) the Class Principal Amount of the Class
M7
Certificates immediately prior to such Distribution Date exceeds (y) the M7
Target Amount for such Distribution Date.
M7
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 88.10% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) the Overcollateralization Floor.
M8
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,
Class
M5, Class M6 and Class M7 Certificates, in each case after giving effect to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class M8 Certificates immediately prior to such Distribution Date exceeds
(y) the M8 Target Amount for such Distribution Date.
M8
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 90.10% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) 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, Class M2, Class M3, Class M4,
Class
M5, Class M6, Class M7 and Class M8 Certificates, in each case after giving
effect to distributions on such Distribution Date and (ii) the Class Principal
Amount of the Class M9 Certificates immediately prior to such Distribution
Date
exceeds (y) the M9 Target Amount for such Distribution Date.
M9
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 92.40% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) 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
Servicer Investment Period:
As
defined in Section 4.04(c) hereof.
Master
Servicer Remittance Date:
With
respect to each Distribution Date, two Business Days immediately preceding
such
Distribution Date.
Master
Servicing Fee:
As to
any Distribution Date, an amount equal to 1/12th
the
product of (a) the Master Servicing Fee Rate and (b) the outstanding principal
balance of each Mortgage Loan.
Master
Servicing Fee Rate:
0.00%
per annum.
Material
Defect:
As
defined in Section 2.02(c) hereof.
Maximum
Interest Rate:
The
Pool 1 Maximum Interest Rate, the Pool 2 Maximum Interest Rate or the
Subordinate Maximum Interest Rate, as applicable.
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.
39
Monthly
Excess Cashflow:
For
each Distribution Date, the aggregate of any remaining Interest Remittance
Amount pursuant to Section 5.02(d)(v) for
such
date, any Principal Distribution Amount available for distribution pursuant
to
Section 5.02(e)(ii)(C) or 5.02 (e)(iii)(O) for such date, and any Aggregate
Overcollateralization Release Amount 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:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan required to be delivered to the Trustee pursuant to this
Agreement.
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 June 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 set forth, among other things, the following information with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number; (ii)
the city, state and zip code of the Mortgaged Property; (iii) the original
principal amount of the Mortgage Loan; (iv) the Mortgage Rate at origination;
(v) the monthly payment of principal and interest at origination; (vi) the
Mortgage Pool in which such Mortgage Loan is included; (vii) the Servicing
Fee
Rate; (viii) the Custodian with respect to the Mortgage File related to such
Mortgage Loan; (ix) whether such Mortgage Loan is subject to a Prepayment
Premium for voluntary prepayments by the Mortgagor, the term during which such
Prepayment Premiums are imposed and the methods of calculation of the Prepayment
Premium; (x) whether such Mortgage Loan is a Simple Interest Mortgage Loan;
and
(xi) whether such Mortgage Loan is a First Payment Default Mortgage Loan or
a
Delinquency Default Mortgage Loan. The Depositor shall be 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:
Any of
Pool 1 or Pool 2.
Mortgage
Rate:
With
respect to any Mortgage Loan, the per annum rate at which interest accrues
on
such Mortgage Loan, as determined under the related Mortgage Note as reduced
by
any Relief Act Reductions.
Mortgaged
Property:
Either
of (x) the fee simple interest in real property, together with improvements
thereto including any exterior improvements to be completed within 120 days
of
disbursement of the related Mortgage Loan proceeds, or (y) in the case of a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
40
Mortgagor:
The
obligor on a Mortgage Note.
Net
Excess Spread:
With
respect to any Distribution Date, (A) the fraction, expressed as a percentage,
the numerator of which is equal to the product of (i) the amount, if any, by
which (a) the aggregate of the Interest Remittance Amounts for each Mortgage
Pool for such Distribution Date (as reduced by the aggregate Credit Risk
Manager’s Fee) exceeds (b) the Current Interest payable with respect to the
Certificates for such date and (ii) twelve, and the denominator of which is
the
Aggregate Pool Balance for such Distribution Date, multiplied
by (B) a
fraction, the numerator of which is thirty and the denominator of which is
the
greater of thirty and the actual number of days in the immediately preceding
calendar month minus
(C)
the
product, expressed as a percentage, of (i) the amount of any Net Swap Payment
owed to the Swap Counterparty for such Distribution Date divided by the
Aggregate Pool Balance as of the beginning of the related Collection Period
and
(ii) a fraction, the numerator of which is 360 and the denominator of which
is
the actual number of days in the Accrual Period related to such Distribution
Date, plus
(D)
the
product, expressed as a percentage, of (i) the sum of (a) the amount of any
Net
Swap Payment and (b) any Interest Rate Cap Payment received by the Supplemental
Interest Trust for such Distribution Date divided by the Aggregate Pool Balance
as of the beginning of the related Collection Period and (ii) a fraction, the
numerator of which is 360 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date.
Net
Funds Cap:
The
Pool 1 Net Funds Cap, the Pool 2 Net Funds Cap or the Subordinate Net Funds
Cap,
as the context requires.
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 Servicing
Fee Rate for such Mortgage Loan.
Net
Prepayment Interest Shortfall:
With
respect to any Master Servicer Remittance Date, the excess, if any, of any
Prepayment Interest Shortfalls with respect to the Mortgage Loans for such
date
over any amounts paid with respect to such shortfalls by the Servicer pursuant
to the Servicing Agreement.
Net
Simple Interest Excess:
With
respect to any Distribution Date, the excess, if any, of (a) the amount of
the
payments received by the Servicer and the Master Servicer in the related
Collection Period allocable to interest in respect of Simple Interest Mortgage
Loans, calculated in accordance with the Simple Interest Method, net of the
Servicing Fees, over (b) 30 days’ interest at the weighted average (by principal
balance) of the Net Mortgage Rates of the Simple Interest Mortgage Loans as
of
the first day of the related Collection Period, as determined by the Servicer,
on the aggregate principal balance of such Simple Interest Mortgage Loans for
such Distribution Date, carried to six decimal places, rounded down, and
calculated on the basis of a 360-day year consisting of twelve 30-day months.
For this purpose, the amount of interest received in respect of the Simple
Interest Mortgage Loans in any month shall be deemed (i) to include any Advances
of interest made by the Servicer, the Master Servicer or the Trustee (solely
in
its capacity as successor master servicer) in such month in respect of such
Simple Interest Mortgage Loans and (ii) to be reduced by any amounts paid to
the
Servicer, the Master Servicer or the Trustee (solely in its capacity as
successor master servicer) in such month in reimbursement of Advances previously
made by the Servicer, the Master Servicer or the Trustee (solely in its capacity
as successor master servicer) in respect of such Simple Interest Mortgage
Loans.
41
Net
Simple Interest Shortfall:
With
respect to any Distribution Date, the excess, if any, of (a) 30 days’ interest
at the weighted average (by principal balance) of the Net Mortgage Rates of
the
Simple Interest Mortgage Loans as of the first day of the related Collection
Period, as determined by the Servicer, on the aggregate principal balance of
such Simple Interest Mortgage Loans for such Distribution Date, carried to
six
decimal places, rounded down, and calculated on the basis of a 360-day year
consisting of twelve 30-day months, over (b) the amount of the payments received
by the Servicer or the Master Servicer in the related Collection Period
allocable to interest in respect of such Simple Interest Mortgage Loans,
calculated in accordance with the Simple Interest Method, net of the Servicing
Fees.
Net
Swap Payment:
With
respect to each Swap Payment Date, the sum of (i) the net payment required
to be
made pursuant to the terms of the Swap Agreement, which net payment shall not
take into account any Swap Termination Payment, and (ii) any unpaid amounts
due
on previous Swap Payment Dates and accrued interest thereon as provided in
the
Swap Agreement, as calculated by the Swap Counterparty and furnished to the
Trustee.
Net
WAC Rate:
With
respect to any Distribution Date (and the related Accrual Period), a per annum
rate equal to the weighted average of the Net Mortgage Rates of the Mortgage
Loans 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).
NIM
Redemption Amount:
As
defined in Section 7.01(b).
NIM
Residual Securities:
Any
preference shares, ownership certificate or other residual certificates issued
in connection with any NIM Securities.
NIM
Securities:
Any net
interest margin notes (other than any NIM Residual Securities) issued by a
trust
or other special purpose entity, the principal assets of such trust including
the Class P and Class X Certificates and the payments received thereon, which
principal assets back such notes.
NIMS
Agreement:
Any
agreement pursuant to which the NIM Securities are issued.
NIMS
Insurer:
One or
more insurers issuing financial guaranty insurance policies in connection with
the issuance of NIM Securities.
42
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
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.
Notional
Amount:
Not
applicable.
Notional
Certificate:
Not
applicable.
Offered
Certificates:
The
Class A1, Class A2, Class A3, Class A4, Class A5, Class M1, Class M2, Class
M3,
Class M4, Class M5, Class M6, Class M7, Class M8 and Class M9
Certificates.
Offering
Document:
Each of
the Prospectus, the Private Placement Memorandum and the Class X and Class
P
Private Placement Memorandum, as applicable.
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 which may be in-house or outside counsel to the Depositor, the
Master Servicer or the Trustee but which must be Independent outside counsel
with respect to any such opinion of counsel concerning the transfer of any
Residual Certificate or concerning certain matters with respect to ERISA, or
the
taxation, or the federal income tax status, of each REMIC.
Original
Mortgage Loan:
As
described in the Preliminary Statement.
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 Aggregate
Pool Balance for such Distribution Date exceeds (y) the aggregate Class
Principal Amount of the LIBOR 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
Certificate Principal Amounts of the LIBOR 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.
43
Overcollateralization
Floor:
An
amount equal to $3,883,130.58 (which is 0.50% of the Cut-off Date
Balance).
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 LIBOR Certificate, the Percentage
Interest evidenced thereby shall equal the Certificate Principal Amount thereof
divided by the Class Principal Amount of all Certificates of the same Class.
With respect to the Class X, Class P, Class R and Class LT-R 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 the Servicing Agreement pursuant to Section 11.03(a)(iii) hereunder
in connection with any servicing transfer or transfer of any servicing
rights.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan:
An
employee benefit plan or other retirement arrangement which is subject to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan’s or arrangement’s assets by reason of their
investment in the entity.
Plan
Asset Regulations:
The
Department of Labor regulations set forth in 29 C.F.R. 2510.3-101.
PMI
Insurance Premium:
Not
applicable.
PMI
Insurer:
Not
applicable.
Pool
1:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 1.
44
Pool
1
Maximum Interest Rate:
For the
Group 1 Senior Certificates, for each Distribution Date on or before the
Distribution Date on which the aggregate Class Principal Amount of the Group
2
Senior Certificates has been reduced to zero, an annual rate equal to (a) the
product, expressed as a percentage, of (1) the amount, if any, by which the
weighted average of the excess of the maximum “lifetime” Mortgage Rates, as
specified in the related Mortgage Notes for the Pool 1 Mortgage Loans exceeds
the Servicing Fee Rate and (2) 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; plus
(b) the
product, expressed as a percentage, of (1) the sum of (x) the amount of any
Net
Swap Payment owed by the Swap Counterparty on
the
related Swap Payment Date
allocable to Pool 1 (based on the applicable Pool Percentage) and (y) any
Interest Rate Cap Amount owed by the Cap Counterparty on the related Interest
Rate Cap Payment Date allocable to Pool 1 (based on the applicable Pool
Percentage) divided by the Pool Balance for Pool 1 as of the first day of the
related Collection Period (excluding for this purpose Mortgage Loans in
Pool 1 for which prepayments in full have been received and distributed in
the month prior to that Distribution Date) and (2) a fraction, the numerator
of
which is 360 and the denominator of which is the actual number of days in the
Accrual Period related to such Distribution Date; minus
(c) the
product, expressed as a percentage, of (1) a fraction, expressed as a
percentage, the numerator of which is the amount of any Net Swap Payment owed
to
the Swap Counterparty on the related Swap Payment Date allocable to Pool 1
(based on the applicable Pool Percentage) and the denominator of which is the
Pool Balance for Pool 1 as of the first day of the related Collection Period
(not including for this purpose Mortgage Loans in Pool 1 for which
prepayments in full have been received and distributed in the month prior to
that Distribution Date) and (2) a fraction, the numerator of which is 360 and
the denominator of which is the actual number of days in the Accrual Period
related to such Distribution Date.
Pool
1
Net Funds Cap:
With
respect to any Distribution Date and the Group 1 Senior Certificates, a per
annum rate equal to (a) a fraction, expressed as a percentage, the numerator
of
which is the product of (1) the excess, if any, of (i) the Pool 1 Optimal
Interest Remittance Amount for such date over (ii) any Net Swap Payment or
Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date allocable to Pool 1 (based
on
the applicable Pool Percentage) and (2) 12, and the denominator of which is
the
Pool Balance for Pool 1 as of the first day of the related Collection Period
(excluding for this purpose any Mortgage Loans in Pool 1 for which any Principal
Prepayments in full have been deposited into the Collection Account and
distributed therefrom in accordance with Section 5.02 during the month prior
to
such 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.
Pool
1
Optimal Interest Remittance Amount:
With
respect to each Distribution Date, an amount equal to the product of (a) the
quotient of (i) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in Pool 1 as of the first day of the related Collection Period, and (ii)
12 and (b) the Pool Balance for Pool 1 as of the first day of the related
Collection Period (excluding for purposes of clauses (a)(i) and (b) any Mortgage
Loans in Pool 1 for which any Principal Prepayments in full have been deposited
into the Collection Account and distributed therefrom in accordance with Section
5.02 during the month prior to such Distribution Date).
Pool
2:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 2.
45
Pool
2
Maximum Interest Rate:
For the
Group 2 Senior Certificates, and for each Distribution Date on or before the
Distribution Date on which the Class Principal Amount of the Group 1 Senior
Certificates has been reduced to zero, an annual rate equal to (a) the product,
expressed as a percentage, of (1) the amount, if any, by which the weighted
average of the excess of the maximum “lifetime” Mortgage Rates, as specified in
the related Mortgage Notes for the Pool 2 Mortgage Loans exceeds the Servicing
Fee Rate and (2) 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; plus
(b) the
product, expressed as a percentage, of (1) the sum of (x) the amount of any
Net
Swap Payment owed by the Swap Counterparty on the related Swap Payment Date
allocable to Pool 2 (based on the applicable Pool Percentage) and (y) any
Interest Rate Cap Amount owed by the Cap Counterparty on the related Interest
Rate Cap Payment Date allocable to Pool 2 (based on the applicable Pool
Percentage) divided by the Pool Balance for Pool 2 as of the first day of the
related Collection Period (not including for this purpose Mortgage Loans in
Pool 2 for which prepayments in full have been received and distributed in
the month prior to that Distribution Date) and (2) a fraction, the numerator
of
which is 360 and the denominator of which is the actual number of days in the
Accrual Period related to such Distribution Date; minus
(c) the
product, expressed as a percentage, of (1) a fraction, expressed as a
percentage, the numerator of which is the amount of any Net Swap Payment owed
to
the Swap Counterparty on the related Swap Payment Date allocable to Pool 2
(based on the applicable Pool Percentage) and the denominator of which is the
Pool Balance for Pool 2 as of the first day of the related Collection Period
(not including for this purpose Mortgage Loans in Pool 2 for which
prepayments in full have been received and distributed in the month prior to
that Distribution Date) and (2) a fraction, the numerator of which is 360 and
the denominator of which is the actual number of days in the Accrual Period
related to such Distribution Date.
Pool
2
Net Funds Cap:
With
respect to any Distribution Date and the Group 2 Senior Certificates, a per
annum rate equal to (a) a fraction, expressed as a percentage, the numerator
of
which is the product of (1) the excess, if any, of (i) the Pool 2 Optimal
Interest Remittance Amount for such date over (ii) any Net Swap Payment or
Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date allocable to Pool 2 (based
on
the applicable Pool Percentage) and (2) 12, and the denominator of which is
the
Pool Balance for Pool 2 as of the first day of the related Collection Period
(excluding for this purpose any Mortgage Loans in Pool 2 for which any Principal
Prepayments in full have been deposited into the Collection Account and
distributed therefrom in accordance with Section 5.02 during the month prior
to
such 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.
Pool
2
Optimal Interest Remittance Amount:
With
respect to each Distribution Date, an amount equal to the product of (a) the
quotient of (i) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in Pool 2 as of the first day of the related Collection Period, and (ii)
12 and (b) the Pool Balance for Pool 2 as of the first day of the related
Collection Period (excluding for purposes of clauses (a)(i) and (b) any Mortgage
Loans in Pool 2 for which any Principal Prepayments in full have been deposited
into the Collection Account and distributed therefrom in accordance with Section
5.02 during the month prior to such Distribution Date).
46
Pool
Balance:
With
respect to each Mortgage Pool, the aggregate of the Scheduled Principal Balances
of all Mortgage Loans in such Mortgage Pool at the date of
determination.
Pool
Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the fraction, expressed
as a percentage, the numerator of which is the Pool Balance for such Mortgage
Pool for such date and the denominator of which is the Aggregate Pool Balance
for such date.
Pool
Subordinate Amount:
As to
each Mortgage Pool and any Distribution Date, the excess of the Pool Balance
for
such Mortgage Pool as of the first day of the immediately preceding Collection
Period over (i) the Class Principal Amount of the Group 1 Senior Certificates
(in the case of Pool 1) or (ii) the aggregate Class Principal Amounts of the
Group 2 Senior Certificates (in the case of Pool 2) immediately prior to the
related Distribution Date.
Prepayment
Interest Shortfall:
With
respect to any full or partial Principal Prepayment of a Mortgage Loan, the
excess, if any, of (i) one full month’s interest at the applicable Mortgage Rate
(as reduced by the Servicing Fee, in the case of Principal Prepayments in full)
on the outstanding principal balance of such Mortgage Loan immediately prior
to
such prepayment over (ii) the amount of interest actually received with respect
to such Mortgage Loan in connection with such Principal Prepayment.
Prepayment
Period:
(a)
With respect to any Distribution Date and any Principal Prepayment in part
in
respect of any Mortgage Loan, the calendar month immediately preceding the
month
in which such Distribution Date occurs and (b) with respect to any Distribution
Date and any Principal Prepayment in full in respect of any Mortgage Loan,
the
period from the fifteenth (15th)
day of
the preceding calendar month (or, the Cut-off Date in the case of the first
Prepayment Period) through the fourteenth (14th)
day of
the calendar month in which the Distribution Date occurs.
Prepayment
Premiums:
Any
prepayment fees and penalties to be paid by the Mortgagor on a Mortgage
Loan.
Primary
Mortgage Insurance Policy:
Not
applicable.
Prime
Rate:
The
prime rate of the United States money center commercial banks as published
in
The
Wall Street Journal.
Principal
Distribution Amount:
With
respect to each Mortgage Pool and any Distribution Date, an amount equal to
the
Principal Remittance Amount for such Mortgage Pool for such date minus
the
Aggregate Overcollateralization Release Amount, if any, allocable to such
Mortgage Pool, for such Distribution Date (based on the applicable Senior
Proportionate Percentage).
Principal
Prepayment:
Any
Mortgagor payment of principal (other than a Balloon Payment) or other recovery
of principal on a Mortgage Loan that is recognized as having been received
or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or the Servicing Agreement.
47
Principal
Remittance Amount:
With
respect to each Mortgage Pool and any Distribution Date, (a) the sum of (i)
all
principal collected (other than Payaheads) or advanced in respect of Scheduled
Payments on the Mortgage Loans in such Mortgage Pool during the related
Collection Period whether by the Servicer, the Master Servicer or the Trustee
(solely in its capacity as successor Master Servicer) (less unreimbursed
Advances due to the Master Servicer, the Servicer or the Trustee with respect
to
the related Mortgage Loans, to the extent allocable to principal, and any
unreimbursed Servicing Advances not reimbursed by a reduction from the Interest
Remittance Amount), (ii) all Principal Prepayments in full or in part received
during the related Prepayment Period on the Mortgage Loans in such Mortgage
Pool, (iii) the outstanding principal balance of each Mortgage Loan (excluding
any FPD Premium) in such Mortgage Pool that was purchased from the Trust Fund
by
the Seller during the related Prepayment Period or the Master Servicer (in
the
case of certain Mortgage Loans 120 days or more delinquent) from such Mortgage
Pool, (iv) the portion of any Substitution Amount paid with respect to any
Deleted Mortgage Loan in such Mortgage Pool during the related Prepayment Period
allocable to principal and (v) all Net Liquidation Proceeds, Insurance Proceeds,
any Subsequent Recovery and other recoveries collected with respect to the
Mortgage Loans in such Mortgage Pool during the related Prepayment Period,
to
the extent allocable to principal, as reduced by (b) to the extent not
reimbursed from amounts otherwise allocable to interest, the related Pool
Percentage for such date of any other costs, expenses or liabilities
reimbursable to the Trustee, the Master Servicer, the Custodian and the Servicer
to the extent provided in this Agreement, the Servicing Agreement and the
Custodial Agreement and, with respect to the Trustee, to the extent the Interest
Remittance Amount is less than amounts reimbursable to the Trustee pursuant
to
Section 4.04(b)(i), the product of (x) the applicable Pool Percentage for such
Distribution Date and (y) any amounts reimbursable during the related
Anniversary Year to the Trustee therefrom and not reimbursed from the Interest
Remittance Amount, or otherwise; provided,
however,
that
such reimbursable amounts from the Interest Remittance Amount and Principal
Remittance Amount may not exceed $200,000 in the aggregate during any
Anniversary Year. In the event that the Trustee incurs reimbursable amounts
in
excess of $200,000, it may seek reimbursement for such amounts in subsequent
Anniversary Years, but in no event shall more than $200,000 be reimbursed to
the
Trustee per Anniversary Year. Notwithstanding the foregoing, costs and expenses
incurred by the Trustee pursuant to Section 6.14(a) in connection with any
transfer of servicing shall be excluded from the $200,000 per Anniversary Year
limit on reimbursable amounts. For the avoidance of doubt, (i) the Principal
Remittance Amount available on each Swap Payment Date for distributions to
the
Swap Account shall be equal to the Principal Remittance Amount on the related
Distribution Date and (ii) the Principal Remittance Amount for each Distribution
Date shall be calculated without regard to any distributions to the Swap Account
on the related Swap Payment Date.
Private
Placement Memorandum:
The
private placement memorandum dated June 27, 2007, relating to the Class B1
and Class B2 Certificates.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
48
Prospectus:
The
prospectus supplement dated June 27, 2007, together with the accompanying
prospectus dated May 22, 2007, relating to the Offered
Certificates.
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) the amount of any costs and damages incurred
by
the Trust Fund as a result of any violation of any applicable federal, state
or
local predatory- or abusive-lending law arising from or in connection with
the
origination of such Mortgage Loan; and (d) any unreimbursed Servicing Advances
with respect to such Mortgage Loan. The Master Servicer, the Servicer, the
Custodian (or the Trustee, 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 or related REO
Property that are reimbursable to the Master Servicer or the Servicer under
this
Agreement or the Servicing Agreement (or to the Trustee, if applicable),
together with any accrued and unpaid compensation due to the Master Servicer,
the Servicer, the Custodian or the Trustee hereunder or thereunder.
Purchaser
Call Option Notice:
As
defined in Section 7.01(d).
QIB:
As
defined in Section 3.03(c).
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account or the Certificate Account and insuring a
minimum, fixed or floating rate of return on investments of such funds, which
contract or surety bond shall:
(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 or Master Servicer, as applicable, 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 or Master Servicer, as
applicable, 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;
(iv)
provide
that the Trustee’s interest therein shall be transferable to any successor
trustee hereunder; and
49
(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:
An
insurance company duly qualified as such under the laws of the states in which
the related Mortgaged Properties are located, duly authorized and licensed
in
such states to transact the applicable insurance business and to write the
insurance provided and whose claims paying ability is rated by each Rating
Agency in its highest rating category or whose selection as an insurer will
not
adversely affect the ratings of the Certificates.
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
more
than 18 months longer and not more than 18 months shorter than the remaining
stated term to maturity of the related Deleted Mortgage Loan; provided,
that
in
no case should such substitute Mortgage Loan have a maturity date later than
the
Final Scheduled Distribution Date; (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 the 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 related
Mortgage Loan Sale Agreement, (xvi) has the same or higher lien position as
the
Deleted Mortgage Loan, (xvii) [reserved], (xviii) if applicable, 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 and (xix) for any Mortgage Loan to be substituted into Pool 1, has an
original Scheduled Principal Balance within the maximum dollar amount
limitations prescribed by Xxxxxx Xxx for conforming one-to-four family first
lien residential mortgaged properties. 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; provided,
that
the
stated maturity date of any Qualifying Substitute Mortgage Loan shall not be
later than the Final Scheduled Distribution Date, 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 be satisfied
as to each Qualifying Substitute Mortgage Loan or in the aggregate, as the
case
may be.
50
Rating
Agency:
Each of
Xxxxx’x 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.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Record
Date:
With
respect to any Class of Book-Entry Certificates and any Distribution Date,
the
close of business on the Business Day immediately preceding such Distribution
Date. With respect to 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).
Regular
Interests Purchase Option:
As
defined in Section 7.01(c).
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Regulation
S:
Regulation S promulgated under the Securities Act or any successor provision
thereto, in each case as the same may be amended from time to time; and all
references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition
or
term, as the case may be, or any successor thereto, in each case as the same
may
be amended from time to time.
Regulation
S Global Security:
The
meaning specified in Section 3.01(d).
Related
Senior Principal Distribution Amount:
For
each Mortgage Pool and any Distribution Date on or after the Stepdown Date
and
for as long as a Trigger Event is not in effect, an amount equal to the lesser
of (x) the sum of the Class Principal Amounts of the Group 1 Senior Certificates
(with respect to Pool 1) or the sum of the Class Principal Amounts of the Group
2 Senior Certificates (with respect to Pool 2) immediately prior to such date
and (y) the product of (a) the Senior Principal Distribution Amount and (b)
the
related Senior Proportionate Percentage, in each case for such
date.
51
Related
Senior Priority:
With
respect to each of the Group 1 Senior Certificates and the Group 2 Senior
Certificates, the priority of distribution on the Senior Certificates relating
to such Groups as described in Sections 5.02(e)(i)(A)(3) and 5.02(e)(i)(B)(3),
respectively.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit S 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 Paying Agent, the Trustee, the Credit Risk Manager, the Custodian
or the Servicer, the term “Relevant Servicing Criteria” may refer to a portion
of the Relevant Servicing Criteria applicable to such parties.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of interest collectible thereon as a result of application of the Civil
Relief Act, any amount by which interest collectible on such Mortgage Loan
for
the Due Date in the related 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
pool of assets in the Trust Fund designated as a REMIC pursuant to the
Preliminary Statement.
REMIC
1:
As
described in the Preliminary Statement.
REMIC
2:
As
described in the Preliminary Statement.
REMIC
3:
As
described in the Preliminary Statement.
REMIC
3 Net Funds Cap:
For any
Distribution Date (and the related Accrual Period) and any Class of
Certificates, an amount equal to (i) the weighted average of the interest rates
on the Lower Tier Interests in REMIC 3 (other than an interest-only regular
interest), weighted in proportion to their Class Principal Amounts as of the
beginning of the related Accrual Period, multiplied by (ii) an amount equal
to
(a) 30, divided by (b) the actual number of days in the Accrual
Period.
REMIC
4:
As
described in the Preliminary Statement.
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 product of: (i) the “Rate of Payment (%)” under the Swap Agreement for
such Distribution Date, as set forth in Annex C-1 to the Prospectus Supplement,
(ii) 2, and (iii) the quotient of (a) the actual number of days in the related
Accrual Period divided by (b) 30.
52
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan or
otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Reportable
Event:
As
defined in Section 6.20(f)(i).
Reporting
Servicer:
As
defined in Section 6.20(e)(i).
Required
Reserve Fund Deposit:
With
respect to any Distribution Date on which the Net Excess Spread is less than
0.25%, the amount, if any by which (a) the product of 1.00% and the Aggregate
Pool Balance for such date exceeds (b) the amount on deposit in the Basis Risk
Reserve Fund immediately prior to such date. With respect to any Distribution
Date on which the Net Excess Spread is equal to or greater than 0.25%, the
amount, if any, by which (i) $1,000 exceeds the amount on deposit in the Basis
Risk Reserve Fund immediately prior to such date; provided,
however,
that on
any Distribution Date on which the Class Principal Amount of each Class of
Offered Certificates, the Class B1 Certificates and the Class B2 Certificates
has been reduced to zero, the Required Reserve Fund Deposit shall be
zero.
Residual
Certificate:
Any
Class R or Class LT-R Certificate.
Responsible
Officer or responsible officer:
When
used with respect to the Trustee (including in its capacity as Paying Agent),
any vice president, assistant vice president, the secretary, any assistant
secretary, or any officer, working in its Corporate Trust Office, or corporate
trust group, as applicable, and having 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 B1, Class B2, Class P, Class X, Class R or Class LT-R
Certificate.
Restricted
Global Security:
As
defined in Section 3.01(c).
Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
equal
to 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).
S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor in interest.
Xxxxxxxx-Xxxxx
Act:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
53
Xxxxxxxx-Xxxxx
Certification:
A
written certification covering the activities of all Servicing Function
Participants and signed by an officer of the Exchange Act Signing Party that
complies with Section 302 of the Xxxxxxxx-Xxxxx Act, as amended from time to
time.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction
(excluding all amounts of principal and interest that were due on or before
the
Cut-off Date, whenever received) and, in the case of an REO Property, an amount
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 (other than a Simple Interest Mortgage Loan)
as
of any Distribution Date, the principal balance of such Mortgage Loan at the
close of business on the Cut-off Date after giving effect to principal payments
due on or before the Cut-off Date, whether or not received, less an amount
equal
to principal payments due after the Cut-off Date, and on or before the Due
Date
in the related Collection Period, whether or not received from the Mortgagor
or
advanced by the Servicer or the Master Servicer, and all amounts 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 (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 as of the Cut-off Date, the principal balance
of
such Mortgage Loan as specified in the Mortgage Loan Schedule. The Scheduled
Principal Balance of any Liquidated Mortgage Loan shall be zero. In the case
of
a Simple Interest Mortgage Loan, references herein to such Mortgage Loan’s
Scheduled Principal Balance shall mean its actual unpaid principal balance.
The
actual unpaid principal balance of a Simple Interest Mortgage Loan with respect
to any Distribution Date shall be determined by subtracting from such Mortgage
Loan’s unpaid principal balance as of the end of the preceding Collection Period
the amount of the borrower’s fixed monthly payment for the related Collection
Period that is not allocated to the payment of interest applying the Simple
Interest Method.
Section
7.01(c) Purchase Event:
The
purchase of all the Lower Tier REMIC 1 Uncertificated Regular
Interests.
Securities
Act:
The
Securities Act of 1933, as amended.
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.
54
Seller
Remittance Amount:
With
respect to the Servicer, the meaning assigned to such term in the Servicing
Agreement.
Senior
Certificate:
Any
Class A1, Class A2, Class A3, Class A4 or Class A5 Certificate.
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 Aggregate 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 on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
lesser of (x) the aggregate Principal Distribution Amount for both Mortgage
Pools and (y) the amount, if any by which (A) the aggregate Class Principal
Amount of the Senior Certificates immediately prior to such Distribution Date
exceeds (B) the Senior Target Amount.
Senior
Proportionate Percentage:
With
respect to Pool 1 and any Distribution Date, the fraction, expressed as a
percentage, the numerator of which is the Principal Remittance Amount for Pool
1
for such Distribution Date and the denominator of which is the aggregate of
the
Principal Remittance Amounts for Pool 1 and Pool 2 for such Distribution Date.
With respect to Pool 2 and any Distribution Date, the fraction, expressed as
a
percentage, the numerator of which is the Principal Remittance Amount for Pool
2
for such Distribution Date and the denominator of which is the aggregate of
the
Principal Remittance Amounts for Pool 1 and Pool 2 for such Distribution Date.
Senior
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 54.10% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period (after
giving effect to any prepayments received during the related Prepayment Period)
and (b) the amount, if any, by which (i) the Aggregate Pool Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) exceeds (ii) the Overcollateralization Floor.
Servicer:
As of
the Closing Date, JPMorgan Chase Bank, National Association, or any successors
in interest.
Servicer
Remittance Date:
The day
in each calendar month on which the Servicer is required to remit payments
to
the Collection Account, as specified in the Servicing Agreement, which is the
18th
day of
each calendar month (or, if such 18th
day is
not a Business Day, the next succeeding Business Day).
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.
55
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Advances (including reasonable attorneys’ fees and disbursements) incurred
in the performance by the Servicer of its servicing obligations, including,
but
not limited to, the cost of (a) the preservation, inspection, restoration and
protection of the Mortgaged Property, (b) any enforcement or administrative
or
judicial proceedings, including foreclosures, (c) the management and liquidation
of the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage, (d) taxes, assessments, water rates, sewer rents and other
charges which are or may become a lien upon the Mortgaged Property, and fire
and
hazard insurance coverage and (e) any losses sustained by the Servicer with
respect to the liquidation of the Mortgaged Property.
Servicing
Agreement:
The
securitization servicing agreement, dated as of June 1, 2007, among the
Seller, the Master Servicer and the Servicer, and any other servicing agreement
entered into between a successor servicer, the Master Servicer and the Seller
pursuant to the terms of this Agreement.
Servicing
Criteria:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
Servicing
Fee:
As to
any Distribution Date and each Mortgage Loan, an amount equal to the product
of
(a) one-twelfth of the Servicing Fee Rate and (b) the Scheduled Principal
Balance of such Mortgage Loan as of the first day of the related Collection
Period.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the rate specified in the Servicing
Agreement.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than the Servicer, the
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.
Servicing
Officer:
Any
officer of the Servicer involved in or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Master Servicer or Seller upon
request, as such list may from time to time be amended.
Simple
Interest Method:
With
respect to a Simple Interest Mortgage Loan, the method of allocating a payment
to principal and interest, pursuant to which the portion of such payment that
is
allocated to interest is equal to the product of the applicable rate of interest
multiplied by the unpaid principal balance multiplied by the period of time
elapsed since the preceding payment of interest was made and divided by either
360 or 365, as specified in the related Mortgage Note and the remainder of
such
payment is allocated to principal.
56
Simple
Interest Mortgage Loan:
Any
Mortgage Loan specified as a “DSI Loan” in the Mortgage Loan Schedule attached
hereto as Schedule A. As of the Closing Date, there are no Simple Interest
Mortgage Loans included in the Trust Fund.
Sponsor:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Stepdown
Date:
The
earlier of (i) the first Distribution Date following the Distribution Date
on
which the Class Principal Amounts of the Senior Certificates have each been
reduced to zero or (ii) the later to occur of (x) the Distribution Date in
July
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 during the related Collection Period
but before giving effect to distributions on the Certificates on such
Distribution Date) is greater than or equal to 45.90%.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one or
more discrete functions identified in Item 1122(d) of Regulation AB with respect
to the Mortgage Loans under the direction or authority of the Paying Agent,
the
Trustee, the Master Servicer, the Custodian, the Servicer or the Credit Risk
Manager.
Subordinate
Certificate:
Any
Class M Certificate or Class B Certificate.
Subordinate
Maximum Interest Rate:
For (i)
the Subordinate Certificates; (ii) the Group 1 Senior Certificates, with respect
to each Distribution Date after the Distribution Date on which the aggregate
Class Principal Amount of the Group 2 Senior Certificates has been reduced
to
zero; and (iii) the Group 2 Senior Certificates, with respect to each
Distribution Date after the Distribution Date on which the Class Principal
Amount of the Group 1 Senior Certificates has been reduced to zero; the weighted
average of the Pool 1 Maximum Interest Rate and the Pool 2 Maximum Interest
Rate
for such Distribution Date, weighted on the basis of (i) in the case of any
Distribution Date on or before the date on which the aggregate Class Principal
Amount of the Senior Certificates relating to any Mortgage Pool has been reduced
to zero, the Pool Subordinate Amount and (ii) for any Distribution Date
thereafter, such weighting shall be on the basis of the Pool Balance of each
Mortgage Pool.
Subordinate
Net Funds Cap:
With
respect to any Distribution Date, an amount equal to the weighted average of
the
Pool 1 Net Funds Cap and the Pool 2 Net Funds Cap, weighted on the basis of
the
Pool Subordinate Amount for each Mortgage Pool; provided,
however,
that on
any Distribution Date after which the aggregate Class Principal Amount of the
Senior Certificates relating to any Mortgage Pool has been reduced to zero,
such
weighting shall be on the basis of the Pool Balance of each Mortgage
Pool.
Subordinate
Priority:
To the
Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class
M8,
Class M9, Class B1 and Class B2 Certificates, sequentially, in that
order.
57
Subsequent
Recovery:
Any
amount recovered by the 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 the Servicer or Additional Servicer, and
(iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of Servicing functions required to be performed
under this Agreement, the Servicing Agreement or any subservicing agreement
that
are identified in Item 1122(d) of Regulation AB.
Substitution
Amount:
The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus
unpaid
interest thereon, any related unpaid Advances or Servicing Advances or unpaid
Servicing Fees and the amount of any costs and damages incurred by the Trust
Fund associated with a violation of any applicable federal, state or local
predatory or abusive lending law in connection with the origination of such
Deleted Mortgage Loan.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 5.07 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Swap Account, the Interest Rate Cap Agreement, the Interest
Rate
Cap Account, the Collateral Account, the right to receive the Class X
Distributable Amount as provided in Section 5.02(f)(vi), the Class LT4-I
interest in REMIC 4 and the right to receive Class I Shortfalls.
Swap
Account:
The
account created pursuant to Section 5.07(a) of this Agreement.
Swap
Agreement:
The
interest rate swap agreement entered into by the Trustee on behalf of the
Supplemental Interest Trust and the Swap Counterparty, 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, credit
support annex or other agreements relating thereto, attached hereto as Exhibit
O.
Swap
Amount:
With
respect to each Distribution Date and the related Swap Payment Date, the sum
of
any Net Swap Payment and any Swap Termination Payment deposited into the Swap
Account and any investment earnings thereon.
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
Swiss Re Financial Products Corporation.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event (other than an Illegality or Tax Event, as such terms are defined in
the
Swap Agreement) with respect to which the Swap Counterparty is the sole Affected
Party or an Additional Termination Event with respect to which the Swap
Counterparty is the sole Affected Party has occurred.
58
Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
Swap
LIBOR:
With
respect to any Distribution Date and the related Swap Payment Date (and the
Accrual Period relating to such Distribution Date), the product of (i) the
Floating Rate Option (as defined in the Swap Agreement) for the related Swap
Payment Date, (ii) two, and (iii) the quotient of (a) the actual number of
days
in the Accrual Period for the LIBOR Certificates and (b) 30, 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
Replacement Receipts:
As
defined in Section 5.09(a).
Swap
Replacement Receipts Account:
As
defined in Section 5.09(a).
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.
Swap
Termination Receipts:
As
defined in Section 5.09(a).
Swap
Termination Receipts Account:
As
defined in Section 5.09(a).
Target
Amount:
With
respect to any Distribution Date, an amount equal to the Aggregate Pool Balance
for such Distribution Date minus
the
Targeted Overcollateralization Amount for such Distribution Date.
Targeted
Overcollateralization Amount:
For any
Distribution Date prior to the Stepdown Date, an amount equal to $16,698,115.48
(or approximately 2.15% of the Cut-off Date Balance). For any Distribution
Date
on or after the Stepdown Date and provided a Trigger Event is not in effect,
an
amount equal to the greater of (i) the lesser of (a) $16,698,115.48 (or
approximately 2.15% of the Cut-off Date Balance) and (b) 4.30% of the Aggregate
Pool Balance for such Distribution Date determined as of the last day of the
related Collection Period (after giving effect to any prepayments received
during the related Prepayment Period) and (ii) the Overcollateralization Floor.
With respect to any Distribution Date on or after the Stepdown Date and provided
a Trigger Event is in effect, an amount equal to the Targeted
Overcollateralization Amount for the immediately preceding Distribution
Date.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Termination
Event:
As
defined in the Swap Agreement and the Interest Rate Cap Agreement, as
applicable.
Termination
Price:
As
defined in Section 7.01.
59
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 aggregate of the Interest
Remittance Amounts for such date; (ii) the aggregate of the Principal Remittance
Amounts for such date; and (iii) all Prepayment Premiums collected during the
related Prepayment Period.
Transfer
Agreement:
Not
applicable.
Transferor:
BNC
Mortgage LLC.
Trigger
Event:
A
Trigger Event shall have occurred with respect to any Distribution Date if
either a Delinquency Event or a Cumulative Loss Trigger Event is in effect
for
such Distribution Date.
Trust
Fund:
The
corpus of the BNC Mortgage Loan Trust 2007-3 created pursuant to this Agreement,
consisting of the Mortgage Loans, the assignment of the Depositor’s rights under
the Transfer Agreement, the Mortgage Loan Sale Agreement and the Servicing
Agreement, such amounts as shall from time to time be held in the Collection
Account, the Certificate Account, any Custodial Account and any Escrow Account,
the Swap Termination Receipts Account, the Swap Replacement Receipts Account,
the Cap Termination Receipts Account, the Cap Replacement Receipts Account,
the
Basis Risk Reserve Fund, the Insurance Policies, any REO Property and the other
items referred to in, and conveyed to the Trustee under, Section
2.01(a).
Trust
Fund Termination Event:
As
defined in Section 7.01(a).
Trustee:
Citibank, N.A., not in its individual capacity but solely as trustee for the
benefit of the Certificateholders under this Agreement or solely in its capacity
as trustee of the Supplemental Interest Trust, as applicable, or any successor
in interest, or if any successor trustee shall be appointed as herein provided,
then such successor in interest or successor trustee, as the case may
be.
Trustee
Fee:
As to
any Distribution Date, any investment earnings from amounts on deposit in the
Certificate Account after payment of one day of investment earnings on amounts
on deposit in the Certificate Account to the Master Servicer for the Master
Servicer Investment Period and payment of the fees and expenses payable to
the
Custodian from such amounts, as provided in Section 4.04(c).
UCC
or
Uniform Commercial Code:
The
Uniform Commercial Code as in effect in any applicable jurisdiction from time
to
time.
Underwriter:
Xxxxxx
Brothers Inc.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2007-5 (72 Fed. Reg. 13130, March 20, 2007),
as
amended (or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
60
Unpaid
Basis Risk Shortfall:
With
respect to any Distribution Date and any LIBOR Certificate, the aggregate of
all
Basis Risk Shortfalls with respect to such Certificate remaining unpaid from
previous Distribution Dates, plus interest accrued thereon for the related
Accrual Period at the applicable Certificate Interest Rate (calculated without
giving effect to the applicable Net Funds Cap) but limited to a rate no greater
than the applicable Maximum Interest Rate.
Upper
Tier REMIC:
REMIC
4.
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, 97.00% of all Voting Interests shall
be
allocated to the LIBOR Certificates. Voting Interests shall be allocated among
the Classes of LIBOR Certificates based on the product of (i) 97.00% and (ii)
the fraction, expressed as a percentage, the numerator of which is the aggregate
Class Principal Amount of all Certificates of that Class then outstanding and
the denominator of which is the Aggregate Pool Balance then outstanding. At
all
times during the term of this Agreement, 1% of all Voting Interests shall be
allocated to each of the Class P, Class R and Class X Certificates while they
remain outstanding. Voting Interests shall be allocated among the other Classes
of Certificates (and among the Certificates within each such Class) in
proportion to their Class Principal Amounts (or Certificate Principal Amounts)
or Percentage Interests. In the case of the purchase by the Master Servicer
of
the Lower Tier REMIC 1 Uncertificated Regular Interests pursuant to a Section
7.01(c) Purchase Event, the LTURI-holder shall be allocated 100% of the Voting
Interests and upon such purchase any provision in this Agreement which requires
a vote by, a direction or notice given by, an action taken by, a request in
writing by or the consent of, any percentage of the Holders of the Certificates
or any Class of Certificates may be exercised by the LTURI-holder.
|
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 Swap Counterparty or the Cap Counterparty.
The Trustee shall not be required to recompute, verify or recalculate the
information supplied to it by the Master Servicer, the Servicer, the Swap
Counterparty, the Cap Counterparty or the Credit Risk Manager.
|
Section
1.03
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Calculations
Respecting Accrued Interest.
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Accrued
interest, if any, on any LIBOR Certificate shall be calculated based upon a
360-day year and the actual number of days in each Accrual Period. Accrued
interest, if any, on the Class X Certificates and on any Lower Tier Interest
shall be calculated based upon a 360-day year consisting of twelve 30-day
months, and each Accrual Period shall be deemed to have 30 days.
61
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
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Section
2.01
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Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
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(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 and all amounts from time to time credited to and the
proceeds of the Collection Account, the Certificate Account and all amounts
from
time to time credited to and the proceeds of the Certificate Account (exclusive
of investment earnings thereon), any Custodial Accounts and all amounts from
time to time credited to and the proceeds of the Custodial Accounts, any Escrow
Account established pursuant to Section 9.06 and any 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, 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 Additional
Collateral, and any proceeds of the foregoing, to have and to hold, in trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it has received and shall hold the Trust Fund, as trustee, in trust,
for
the benefit and use of the Holders of the Certificates and for the purposes
and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated and
delivered to or upon the order of the Depositor, in exchange for the Trust
Fund,
Certificates in the authorized denominations evidencing the entire ownership
of
the Trust Fund.
Concurrently
with the execution of this Agreement, the Swap Agreement and the Interest Rate
Cap 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 and
the
Interest Rate Cap Agreement (each on behalf of the Supplemental Interest Trust)
for the benefit of, the Certificateholders. The Seller, the Master Servicer,
the
Depositor, the Servicer and the Certificateholders (by their acceptance of
such
Certificates) acknowledge and agree that the Trustee is executing and delivering
the Swap Agreement and the Interest Rate Cap Agreement solely in its capacity
as
Trustee of the Supplemental Interest Trust and not in its individual capacity.
The Depositor hereby authorizes and directs the Trustee to enter into the Swap
Agreement and the Interest Rate Cap Agreement and authorizes it to represent
in
the Swap Agreement that it is not required by any applicable law of any relevant
jurisdiction to make any deduction or withholding for or on account of any
tax
from any Net Swap Payment. Furthermore, the Depositor hereby authorizes the
Trustee, in its capacity as trustee on behalf of the Supplement Interest Trust
to perform all of the obligations of the Supplemental Interest Trust under
the
Swap Agreement and the Interest Rate Cap Agreement, including to: (x) take
direction from the Depositor as specified in the Swap Agreement and the Interest
Rate Cap Agreement, (y) accept any “Firm Offers” as specified in the Swap
Agreement and the Interest Rate Cap Agreement and (z) authorize the payment
to
Xxxxxx Brothers Holding Inc. of the “Floating Rate Payer Upfront Payment”
specified in the Swap Agreement. The Trustee shall have no duty or
responsibility to enter into any other swap agreement or interest rate cap
agreement upon the expiration or termination of the Swap Agreement or the
Interest Rate Cap Agreement other than as provided in Section 5.09(a) and (b),
respectively.
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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
Agreement, but only to the extent assigned under the Mortgage Loan Sale
Agreement. The Trustee hereby accepts such assignment, 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.
It
is
agreed and understood by the Depositor and the Trustee (and the Seller has
so
represented and recognized in the Mortgage Loan Sale Agreement) that it is
not
intended that any Mortgage Loan to be included in the Trust Fund be (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.
The
foregoing sale, transfer, assignment, set-over, deposit 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 Seller or any other Person in connection
with the Mortgage Loans or any other agreement or instrument relating thereto
except as specifically set forth therein.
The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
(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 the 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, 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;
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(ii)
the
original of any guarantee 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 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
the
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 acceptable 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 Custodian) is a true
copy and that the original of such agreement has been forwarded to the public
recording office;
(v)
with
respect to each Non-MERS Mortgage Loan other than a Cooperative Loan, an
original Assignment of Mortgage, in form and substance acceptable for recording.
The Mortgage shall be assigned either (A) in blank, without recourse or (B)
to
“Citibank, N.A., as Trustee of the BNC Mortgage Loan Trust 2007-3,” 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 acceptable to the Trustee and any NIMS Insurer that such original
Intervening Assignment is not required to enforce the Trustee’s interest in the
Mortgage Loan;
(vii)
with
respect to any Mortgage Loan other than a Cooperative Loan, the original
mortgagee title insurance policy (or, in lieu thereof, a commitment to issue
such title insurance policy with an original or certified copy of such title
insurance policy to follow as soon after the Closing Date as reasonably
practicable) or attorney’s opinion of title and abstract of title;
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(viii)
[reserved];
(ix)
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 Custodian) is a true copy and that the original of such document
has been forwarded to the public recording office;
(x)
with
respect to any Cooperative Loan, the Cooperative Loan Documents;
and
(xi)
with
respect to any manufactured housing contract, any related manufactured housing
sales contract, installment loan agreement or participation
interest.
The
parties hereto acknowledge and agree that the form of endorsement attached
hereto as Exhibit B-4 is intended to effect the transfer to the Trustee, for
the
benefit of the Certificateholders, of the Mortgage Notes and the
Mortgages.
(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 and the
Rating Agencies, 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 direct 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 Servicer, shall direct to be properly recorded by the
Servicer in each public recording office where the related Mortgages are
recorded each Assignment of Mortgage referred to in subsection (b)(v) above
with
respect to each Non-MERS Mortgage Loan.
(ii)
With
respect to each MERS Mortgage Loan, the Master Servicer shall direct the
Servicer, at the expense of the Depositor, 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. With respect to each
Cooperative Loan, the Master Servicer, at the expense of the Depositor and
with
the cooperation of the Servicer, shall direct the Servicer to take such actions
as are necessary under applicable law in order to perfect the interest of the
Trustee in the related Mortgaged Property.
65
(d) In
instances where a Title Insurance Policy is required to be delivered to the
Trustee or the 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 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 any NIMS Insurer and the Trustee, or to the
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 Custodian on behalf of the Trustee shall be
held
by the Master Servicer or the Servicer in trust for the benefit of the Trustee
and the Certificateholders.
(f) The
issuing entity is hereby named BNC Mortgage Loan Trust 2007-3.
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Section
2.02
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Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
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(a) The
Trustee, by execution and delivery hereof, acknowledges receipt by it or by
the
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 Custodian on behalf of the Trustee, under this Section 2.02. The
Trustee, or the Custodian on behalf of the Trustee, will execute and deliver
to
the Depositor, the Master Servicer, the Trustee 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 Custodial Agreement as Exhibit B-1, as
applicable).
(b) Within
45
days after the Closing Date, the Trustee or the Custodian on behalf of the
Trustee, will, for the benefit of Holders of the Certificates, review each
Mortgage File to ascertain that all required documents set forth in Section
2.01
have been received and appear on their face to contain the requisite signatures
by or on behalf of the respective parties thereto, and shall deliver to the
Trustee, the Depositor, 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 Custodial Agreement as Exhibit B-2, as applicable) to the effect that,
as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan prepaid in full or any Mortgage Loan specifically identified
in
such certification as not covered by such certification), (i) all of the
applicable documents specified in Section 2.01(b) are in its possession and
(ii)
such documents have been reviewed by it and appear to relate to such Mortgage
Loan. The Trustee, or the 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 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.
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(c) If
in the
course of the review described in paragraph (b) above the Trustee or the
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 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 Depositor and the Master Servicer. 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 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 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 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 Custodial Agreement as Exhibit B-3, as applicable)
evidencing the completeness of the Mortgage Files in its possession or control,
with any exceptions noted thereto.
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Fund, the Trustee, the 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 Custodian shall perform the applicable
review of the Mortgage Loans and respective certifications thereof as provided
in this Section 2.02 and the Custodial Agreement. The Trustee, solely in its
capacity as Trustee hereunder, is hereby authorized and directed by the
Depositor to appoint the Custodian and to execute and deliver the 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. The Depositor hereby directs the Trustee, solely in its
capacity as Trustee hereunder, to execute and deliver, concurrently with the
execution and delivery of this Agreement, the Servicing Agreement.
67
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Section
2.03
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Representations
and Warranties of the
Depositor.
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(a) The
Depositor hereby represents and warrants to the Trustee, for the benefit of
Certificateholders, the Master Servicer and any NIMS Insurer 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, the Master Servicer
and the Credit Risk Manager, constitutes a valid and binding obligation of
the
Depositor enforceable against it in accordance with its terms except as such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v)
there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened or likely to be asserted against or affecting the Depositor, before
or by any court, administrative agency, arbitrator or governmental body (A)
with
respect to any of the transactions contemplated by this Agreement or (B) with
respect to any other matter which in the judgment of the Depositor will be
determined adversely to the Depositor and will if determined adversely to the
Depositor materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to perform
its obligations under this Agreement; and
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(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) [Reserved].
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Section
2.04
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Discovery
of Breach.
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It
is
understood and agreed that the representations and warranties (i) of the
Depositor 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 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, the Master
Servicer or the Trustee of a breach of any of such representations and
warranties that adversely and materially affects the value of the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties. Within 90 days of the discovery of a breach of
any
representation or warranty given to the Trustee by the Depositor or the Seller,
the Depositor 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 in the
case of a First Payment Default Mortgage Loan or a Delinquency Default Mortgage
Loan, the FPD Purchase Price (excluding any FPD Premium)) or (c) within the
two-year period following the Closing Date, substitute a Qualifying Substitute
Mortgage Loan for the affected Mortgage Loan.
69
|
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 or by the Seller pursuant to the Mortgage Loan Sale Agreement, the
principal portion of the funds (including the FPD Purchase Price (excluding
any
FPD Premium) in the case of any First Payment Default Mortgage Loan or a
Delinquency Default Mortgage Loan) received by the Trustee in respect of such
repurchase of a Mortgage Loan will be considered a Principal Prepayment and
the
Purchase Price or FPD Purchase Price (excluding any FPD Premium), as applicable,
shall be deposited in the Certificate Account. The Master Servicer, the
Servicer, the related Custodian (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 in its capacity as successor master servicer, if applicable),
together with any accrued and unpaid compensation due to the Master Servicer,
the Servicer, the Custodian or the Trustee hereunder or thereunder. 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 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 or the Seller, 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 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 NIMS Insurer 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, any NIMS Insurer
and any Certificateholder may sustain in connection with any actions of such
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 Custodian) pursuant to the terms of this Article II in exchange
for a Deleted Mortgage Loan: (i) the Depositor or the Seller, as applicable,
must deliver to the Trustee (or the 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 granting language substantially comparable
to that set forth in the first paragraph of 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 at the direction and with the
cooperation of the 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 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).
70
(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 any NIMS Insurer has received an
Opinion of Counsel addressed to the Trustee (at the expense of the party seeking
to make the substitution) that, under current law, such substitution will not
cause 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 construed as, a sale of such property and not a grant
of a security interest to secure a loan. However, if such conveyance is deemed
to be in respect of a loan, it is intended that: (1) the rights and obligations
of the parties shall be established pursuant to the terms of this Agreement;
(2)
the Depositor hereby grants to the Trustee for the benefit of the Holders of
the
Certificates a first priority security interest to secure repayment of an
obligation in an amount equal to the aggregate Class Principal Amount of the
Certificates (or the aggregate principal balance of the Lower Tier REMIC 1
Uncertificated Regular Interests, if applicable) in all of the Depositor’s
right, title and interest in, to and under, whether now owned or hereafter
acquired, the Trust Fund, 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 or Lower Tier REMIC 1 Uncertificated
Regular Interests, as applicable (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
or
Lower Tier REMIC 1 Uncertificated Regular Interests, as applicable, the security
interest created hereby shall continue in full force and effect and the Trustee
shall be deemed to be the collateral agent for the benefit of such Person,
and
all proceeds shall be distributed as herein provided.
71
(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 intermediate transferees,
including the Trustee, in the Mortgage Loans. In connection with the
transactions contemplated by this Agreement, each of the Seller and the
Depositor authorizes its immediate or intermediate transferee to file in any
filing office any initial financing statements, any amendments to financing
statements, any continuation statements, or any other statements or filings
described in this paragraph (b).
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 in the Percentage Interests, specified herein. Each Class of
Book-Entry Certificates shall be issued in the minimum denominations in
Certificate Principal Amount specified in the Preliminary Statement hereto
and
in integral multiples of $1 in excess thereof. Each of the Class R and Class
LT-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 (or the Custodian) 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.
72
(c) The
Class
B1,
Class B2,
Class X
and Class P Certificates offered and sold in reliance on the exemption from
registration under Rule 144A under the Securities 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 made on the records of the Trustee
or DTC or its nominee, as the case may be, as hereinafter provided.
(d) The
Class
B1, Class B2, Class X and Class P 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
Class
B1 and Class B2 Certificates sold to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Securities Act shall be issued initially
in
the form of one or more Definitive Certificates.
|
Section
3.02
|
Registration.
|
The
Trustee is hereby appointed, and hereby accepts its appointment as, Certificate
Registrar in respect of the Certificates (and, after a Section 7.01(c) Purchase
Event, the Lower Tier REMIC 1 Uncertificated Regular Interests) and shall
maintain books for the registration and for the transfer of Certificates (and,
after a Section 7.01(c) Purchase Event, the Lower Tier REMIC 1 Uncertificated
Regular Interests) (the “Certificate Register”). The Trustee may appoint a bank
or trust company to act as Certificate Registrar. A registration book shall
be
maintained for the Certificates (and Lower Tier REMIC 1 Uncertificated Regular
Interests, as the case may be) collectively. The Certificate Registrar may
resign or be discharged or removed and a new successor may be appointed in
accordance with the procedures and requirements set forth in Sections 6.06
and
6.07 hereof with respect to the resignation, discharge or removal of the Trustee
and the appointment of a successor Trustee. The Certificate Registrar may
appoint, by a written instrument delivered to the Holders, any NIMS Insurer
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.
73
Upon
the
occurrence of a Section 7.01(c) Purchase Event, the Master Servicer shall
provide the Trustee with written notice of the identity of any transferee of
the
Master Servicer’s interest in the Lower Tier REMIC 1 Uncertificated Regular
Interests, which notice shall contain a certification that such transferee
is a
permitted LTURI-holder hereunder. The Lower Tier REMIC 1 Uncertificated Regular
Interests may only be transferred in whole and not in part to no more than
one
LTURI-holder at a time who is either (1) an affiliate of the Master Servicer
or
(2) a trustee of a privately placed securitization. The Trustee and the
Depositor shall treat the Person in whose name the Lower Tier REMIC 1
Uncertificated Regular Interests are registered on the books of the Certificate
Registrar as the LTURI-holder for all purposes hereunder.
|
Section
3.03
|
Transfer
and Exchange of Certificates.
|
(a) A
Certificate (other than 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.
(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.
74
(c) By
acceptance of a Restricted Certificate or a Regulation S Global Security,
whether upon original issuance or subsequent transfer, each Holder of such
a
Certificate acknowledges the restrictions on the transfer of such Certificate
set forth thereon and agrees that it will transfer such a Certificate only
as
provided herein. In addition, each Holder of a Regulation S Global Security
shall be deemed to have represented and warranted to the Trustee, the
Certificate Registrar and any of their respective successors that: (i) such
Person 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
Securities Act, and that (x) until the expiration of the 40-day distribution
compliance period (within the meaning of Regulation S), no offer, sale, pledge
or other transfer of such Certificates or any interest therein shall be made
in
the United States or to or for the account or benefit of a U.S. person (each
as
defined in Regulation S), (y) if in the future it decides to offer, resell,
pledge or otherwise transfer such Certificates, such Certificates may be
offered, resold, pledged or otherwise transferred only (A) to a person which
the
seller reasonably believes is a “qualified institutional buyer” (a “QIB”) as
defined in Rule 144A under the Securities Act, that is purchasing such
Certificates for its own account or for the account of a qualified institutional
buyer to which notice is given that the transfer is being made in reliance
on
Rule 144A or (B) in an offshore transaction (as defined in Regulation S) in
compliance with the provisions of Regulation S, in each case in compliance
with
the requirements of this Agreement; and it will notify such transferee of the
transfer restrictions specified in this Section.
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i)
The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor or an affiliate (as defined
in
Rule 405 under the Securities Act) of the Depositor or (y) being made to a
“qualified institutional buyer” (a “QIB”) as defined in Rule 144A under the
Securities Act by a transferor that has provided the Trustee with a certificate
in the form of Exhibit F hereto; and
(ii)
The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is being made to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Securities Act, 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) (i)
No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person unless the Trustee has received (A)
a
certificate substantially in the form of Exhibit H hereto (or Exhibit D-1,
in
the case of a Residual Certificate) from such transferee or (B) an Opinion
of
Counsel satisfactory to the Trustee, to the effect that the purchase and holding
of such a Certificate will not constitute or result in prohibited transactions
under Title I of ERISA or Section 4975 of the Code and will not subject the
Trustee, the Master Servicer, the Servicer, any NIMS Insurer or the Depositor
to
any obligation in addition to those undertaken in the Agreement; provided,
however,
that the
Trustee will not require such certificate or opinion in the event that, as
a
result of a change of law or otherwise, counsel satisfactory to the Trustee,
has
rendered an opinion to the effect that the purchase and holding of an
ERISA-Restricted Certificate by a Plan or a Person that is purchasing or holding
such a Certificate with the assets of a Plan will not constitute or result
in a
prohibited transaction under Title I of ERISA or Section 4975 of the Code.
Each
Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate
shall be deemed to have made the representations set forth in Exhibit H. The
preparation and delivery of the certificate and opinions referred to above
shall
not be an expense of the Trust Fund, the Trustee, the Master Servicer, any
NIMS
Insurer or the Depositor.
75
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates. The Trustee shall have no
obligation to monitor transfers of Book-Entry Certificates that are
ERISA-Restricted Certificates and shall have no liability for transfers of
such
Certificates in violation of the transfer restrictions. The Trustee shall be
under no liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
3.03(d) or for making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements. The Trustee shall be entitled,
but
not obligated, to recover from any Holder of any ERISA-Restricted Certificate
that was in fact a Plan or a Person acting on behalf of any such Plan any
payments made on such ERISA-Restricted Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Holder of such Certificate that is not
such
a Plan or Person acting on behalf of a Plan.
(ii)
No
transfer of an ERISA-Restricted Trust Certificate shall be made prior to the
termination of the Swap Agreement and the Interest Rate Cap Agreement, unless
the Trustee shall have received a representation letter from the transferee
of
such Certificate, substantially in the form set forth in Exhibit H, to the
effect that either (i) such transferee is neither a Plan nor a Person acting
on
behalf of any such Plan or using the assets of any such Plan to effect such
transfer or (ii) the acquisition and holding of the ERISA-Restricted Trust
Certificate are eligible for exemptive relief under the statutory exemption
for
nonfiduciary servicer providers under Section 408(b)(17) of ERISA or Section
4975(d)(20) of the Code or Prohibited Transaction Class Exemption (“PTCE”)
84-14, XXXX 00-0, XXXX 00-00, XXXX 95-60 or PTCE 96-23. Notwithstanding anything
else to the contrary herein, prior to the termination of the Swap Agreement
and
the Interest Rate Cap Agreement, any purported transfer of an ERISA-Restricted
Trust Certificate on behalf of a Plan without the delivery to the Trustee of
a
representation letter as described above shall be void and of no effect. If
the
ERISA-Restricted Trust Certificate is a Book-Entry Certificate, prior to the
termination of the Swap Agreement and the Interest Rate Cap Agreement, the
transferee will be deemed to have made a representation as provided in clause
(i) or (ii) of this paragraph, as applicable.
If
any
ERISA-Restricted Trust Certificate, or any interest therein, is acquired or
held
in violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Trust Certificate, or interest therein, was effected in
violation of the provisions of the preceding paragraph shall indemnify to the
extent permitted by law and hold harmless the Depositor, the Trustee, any NIMS
Insurer and the Master Servicer from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result of such
acquisition or holding.
76
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Trust Certificate that is in fact not permitted
by this Section 3.03(d)(ii) or for making any payments due on such Certificate
to the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the transfer was registered
by
the Trustee in accordance with the foregoing requirements.
(e) As
a
condition of the registration of transfer or exchange of any Certificate, the
Certificate Registrar may require the certified taxpayer identification number
of the owner of the Certificate and the payment of a sum sufficient to cover
any
tax or other governmental charge imposed in connection therewith; provided,
however,
that the
Certificate Registrar shall have no obligation to require such payment or to
determine whether or not any such tax or charge may be applicable. No service
charge shall be made to the Certificateholder for any registration, transfer
or
exchange of 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 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 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 or Certificate Registrar 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 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.
77
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 or Certificate Registrar 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 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 Class B1, Class B2, Class X or Class P 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).
(A) Subject
to clauses (B) and (C) of this Section 3.03(h), transfers of a Global Security
representing any Class B1, Class B2, Class X or Class P Certificate shall be
limited to transfers of such Global Security, in whole or in part, to nominees
of DTC or to a successor of DTC or such successor’s nominee.
78
(B) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited with
or on behalf of DTC wishes at any time to exchange its interest in such
Restricted Global Security for an interest in a Regulation S Global Security,
or
to transfer its interest in such Restricted Global Security to a Person who
wishes to take delivery thereof in the form of an interest in a Regulation
S
Global Security, such holder, provided such holder is not a U.S. person, may,
subject to the rules and procedures of DTC, exchange or cause the exchange
of
such interest for an equivalent beneficial interest in the Regulation S Global
Security. Upon receipt by the Trustee, as Certificate Registrar, of (I)
instructions from DTC directing the Trustee, as Certificate Registrar, to 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
M-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.
(C) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of DTC wishes at any time to transfer its interest in such
Regulation S Global Security to a Person who wishes to take delivery thereof
in
the form of an interest in a Restricted Global Security, such holder may,
subject to the rules and procedures 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 M-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 Securities Act and in accordance with any applicable securities laws of
any
State of the United States or any other jurisdiction, then the Trustee, as
Certificate Registrar, will reduce the principal amount of the Regulation S
Global Security and increase the principal amount of the Restricted Global
Security by the aggregate principal amount of the beneficial interest in the
Regulation S Global Security to be transferred and the Trustee, as Certificate
Registrar, shall instruct DTC, concurrently with such reduction, to credit
or
cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the Restricted Global Security equal to the reduction
in the principal amount of the Regulation S Global Security.
79
(D) Other
Exchanges.
In the
event that a Global Security is exchanged for Certificates in definitive
registered form without interest coupons, pursuant to Section 3.09(c) hereof,
such Certificates may be exchanged for one another only in accordance with
such
procedures as are substantially consistent with the provisions above (including
certification requirements intended to insure that such transfers comply with
Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or are to non-U.S.
persons in compliance with Regulation S under the Securities Act, as the case
may be), and as may be from time to time adopted by the Trustee.
(E) Restrictions
on U.S. Transfers.
Transfers of interests in 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)(C).
|
Section
3.04
|
Cancellation
of Certificates.
|
Any
Certificate surrendered for registration of transfer or exchange shall be
cancelled and retained in accordance with the Trustee’s normal retention
policies with respect to cancelled certificates maintained by the Trustee or
the
Certificate Registrar.
|
Section
3.05
|
Replacement
of Certificates.
|
If
(i)
any Certificate is mutilated and is surrendered to the Trustee or any
Authenticating Agent or (ii) the Trustee or any Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee and the Authenticating Agent
and any NIMS Insurer such security or indemnity as may be required by them
to
save each of them harmless, then, in the absence of notice to the Trustee and
any Authenticating Agent that such destroyed, lost or stolen Certificate has
been acquired by a bona fide purchaser, the Trustee shall execute and the
Trustee or any Authenticating Agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate,
a
new Certificate of like tenor and Certificate Principal Amount. Upon the
issuance of any new Certificate under this Section 3.05, the Trustee and
Authenticating Agent may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any
other expenses (including the fees and expenses of the Trustee or the
Authenticating Agent) connected therewith. Any replacement Certificate issued
pursuant to this Section 3.05 shall constitute complete and indefeasible
evidence of ownership in the applicable Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at
any
time.
80
|
Section
3.06
|
Persons
Deemed Owners.
|
Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar, any
NIMS
Insurer 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 none of the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar, any
NIMS
Insurer or 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, subject to the consent of the NIMS Insurer, may appoint a Paying Agent
(which may be the Trustee) for the purpose of making distributions to
Certificateholders hereunder. The Trustee shall cause such Paying Agent (if
other than the Trustee) to execute and deliver to the Trustee an instrument
in
which such Paying Agent shall agree with the Trustee that such Paying Agent
will
hold all sums held by it for the payment to Certificateholders in an Eligible
Account in trust for the benefit of the Certificateholders entitled thereto
until such sums shall be paid to the Certificateholders. All funds remitted
by
the Trustee to any such Paying Agent for the purpose of making distributions
shall be paid to Certificateholders on each Distribution Date and any amounts
not so paid shall be returned on such Distribution Date to the Trustee. If
the
Paying Agent is not the Trustee, the Trustee shall cause to be remitted to
the
Paying Agent on or before the Business Day prior to each Distribution Date,
by
wire transfer in immediately available funds, the funds to be distributed on
such Distribution Date. Any Paying Agent shall be either a bank or trust company
or otherwise authorized under law to exercise corporate trust powers. As of
the
Closing Date, the Trustee shall be the Paying Agent.
81
(b) At
any
time during the period that a Form 10-K is being filed with respect to the
Trust
Fund in accordance with the Exchange Act and the rules and regulations of the
Commission, the Trustee shall not appoint a Paying Agent that is not the Trustee
unless that Paying Agent first agrees in writing with the Trustee (i) to deliver
an assessment of compliance and an accountant’s attestation in such manner and
at such times in compliance with Section 6.01(l) and (m) of this Agreement,
(ii)
to comply with the provisions of Section 6.01(n), 6.01(o), 6.20(e)(i) and
6.20(e)(iii) of this Agreement and (iii) to indemnify the Depositor, the NIMS
Insurer and the Master Servicer, and their respective directors, officers,
employees and agents and the Trust Fund and hold each of them harmless as set
forth in 6.01(p).
|
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, any NIMS
Insurer and the Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Book-Entry Certificates) as the
authorized representatives of the Certificate Owners and the Clearing Agency
shall be responsible for crediting the amount of such distributions to the
accounts of such Persons entitled thereto, in accordance with the Clearing
Agency’s normal procedures;
(iii)
to
the
extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall control;
and
(iv)
the
rights of Certificate Owners shall be exercised only through the Clearing Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever
notice or other communication to the Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued
to
Certificate Owners pursuant to Section 3.09(c), the Trustee shall give all
such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency.
82
(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 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 any NIMS Insurer
and 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. Notwithstanding the foregoing, the Trustee, upon the instruction
of
the Depositor, shall have the right to issue Definitive Certificates on the
Closing Date in connection with credit enhancement programs.
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 BNC Mortgage Loan Trust 2007-3 Mortgage Pass-Through Certificates, Series
2007-3.” The Collection Account shall relate solely to the Certificates and to
the Lower Tier REMIC 1 Uncertificated Regular Interests 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 10 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 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 Master Servicer Remittance 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.
83
(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 (or in the case of Simple Interest Mortgage Loans, representing
scheduled interest payments, but actual principal 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 Master Servicer Remittance Date and two Business
Days
following receipt thereof, the following amounts received or payments made
by it
(other than in respect of principal of and interest on the Mortgage Loans due
on
or before the Cut-off Date):
(i)
all
payments on account of principal, including Principal Prepayments, any
Subsequent Recovery and any Scheduled Payment attributable to principal received
after its related Due Date, on the Mortgage Loans;
(ii)
all
payments on account of interest on the Mortgage Loans, including Prepayment
Premiums, 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 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 Servicer with respect to such Mortgage Loan under the
Servicing Agreement and retained by the Servicer;
(iv)
all
Insurance Proceeds;
(v)
all
Advances made by the Master Servicer or the Servicer pursuant to Section 5.04
or
the Servicing Agreement;
(vi)
any
Seller Remittance Amounts remitted by the Servicer;
(vii)
all
amounts paid by the Servicer with respect to Net Simple Interest Shortfalls
and
Prepayment Interest Shortfalls; and
84
(viii)
the
Purchase Price or FPD Purchase Price (including any FPD Premium) 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.
The
Master Servicer shall also deposit from its own funds into the Collection
Account (to the extent not already received from the Servicer), without right
of
reimbursement, except from Net Simple Interest Excess, an amount equal to any
Net Simple Interest Shortfall (to the extent not offset by Net Simple Interest
Excess) for the related Collection Period.
(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 Master Servicer Remittance Date (except
that
if such Eligible Investment is an obligation of the Trustee, then such Eligible
Investment shall mature not later than such applicable Master Servicer
Remittance 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 Holders
of the BNC Mortgage Loan Trust 2007-3 Mortgage Pass-Through Certificates, Series
2007-3. 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, subject to Section 5.05 hereof, 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
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 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.
|
The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i)
to
reimburse itself or the Servicer for Advances or Servicing Advances made by
it
or by the Servicer pursuant to Section 5.04 or the Servicing Agreement; such
right to reimbursement pursuant to this subclause (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 of the 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 the Servicer’s right
thereto shall be prior to the rights of the Certificateholders;
85
(ii)
to
reimburse itself or the Servicer, following a final liquidation of a Mortgage
Loan (except as otherwise provided in the Servicing Agreement) for any
previously unreimbursed Advances or Servicing Advances made by it or by the
Servicer (A) that it 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 the Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Section 9.22(c) or the
Servicing Agreement in good faith in connection with the restoration of damaged
property and, to the extent that Liquidation Proceeds after such reimbursement
exceed the unpaid principal balance of the related Mortgage Loan, together
with
accrued and unpaid interest thereon at the applicable Mortgage Rate less the
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
the
extent of any previous Advances made by the Master Servicer with respect to
Simple Interest Mortgage Loans, to pay itself an amount equal to Net Simple
Interest Excess for the related Collection Period to the extent not offset
by
Net Simple Interest Shortfalls;
(v)
to
reimburse itself or the Servicer for expenses incurred by and recoverable by
or
reimbursable to it or the Servicer pursuant to this Agreement, including,
without limitation, Sections 9.04, 9.05(b), 9.07(a), 9.30 or 11.15;
(vi)
to
pay to
the Seller any Seller Remittance Amount;
(vii)
to
pay to
the Depositor or the Seller, 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 (or FPD Purchase Price and any FPD Premium (in the case of a
First Payment Default Mortgage Loan or a Delinquency Default Mortgage
Loan));
(viii)
[Reserved];
86
(ix)
subject
to Section 5.05, to pay to itself income earned on the investment of funds
deposited in the Collection Account;
(x)
to
make
payments to the Trustee for deposit into the Certificate Account in the amounts
and in the manner provided herein;
(xi)
to
make
payment to itself, the Trustee and others pursuant to any provision of this
Agreement;
(xii)
to
withdraw funds deposited in error in the Collection Account;
(xiii)
to
clear
and terminate the Collection Account pursuant to Section 7.02;
(xiv)
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 or other successor master servicer
thereto shall be prior to the rights of the Certificateholders; and
(xv)
to
reimburse the Servicer for such amounts as are due thereto under the Servicing
Agreement and have not been retained by or paid to the Servicer, to the extent
provided in the Servicing Agreement.
In
the
event that the Master Servicer fails on any Master Servicer Remittance Date
to
remit to the Trustee any amounts required to be so remitted to the Trustee
pursuant to sub-clause (x) 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 Master
Servicer Remittance Date through the date on which such funds are received
by
the Trustee. 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 Master Servicer
Remittance Date).
In
connection with withdrawals made pursuant to subclauses (i), (iii), (iv), (vi)
and (vii) above, the Master Servicer’s, the 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 made from the Collection Account it maintains pursuant
to such subclause (i), (iii), (iv), (vi) and (vii).
|
Section
4.03
|
Reports
to Certificateholders.
|
(a) On
each
Distribution Date, the Trustee shall have prepared (based solely on information
provided by the Master Servicer, the Cap Counterparty and the Swap Counterparty)
and shall make available to the Paying Agent, any NIMS Insurer, the Swap
Counterparty, the Credit Risk Manager, the Seller and each Certificateholder
a
report (the “Distribution Date Statement”) setting forth the following
information (on the basis of Mortgage Loan level information obtained from
the
Master Servicer):
87
(i)
the
aggregate amount of the distribution to be made on such Distribution Date to
the
Holders of each Class of Certificates, to the extent applicable, allocable
to
principal on the Mortgage Loans, including 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 Certificates allocable to interest and the calculation
thereof;
(iii)
the
amount, if any, of any distribution to the Holders of the Class P Certificate,
the Class X Certificates, the Class LT-R Certificates, and the Residual
Certificate;
(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 the Distribution Date occurs by or
on
behalf of the Servicer (or the Master Servicer) with respect to such
Distribution Date, (B) the aggregate amount of such Advances actually made,
and (C) the amount, if any, by which (A) above exceeds (B)
above;
(v)
by
Mortgage Pool and in the aggregate, 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
(including any prepayments received during the related Prepayment
Period);
(vi)
the
Class
Principal 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 Applied Loss
Amounts;
(vii)
the
amount of any Prepayment Premiums distributed to the Class P Certificates;
(viii)
by
Mortgage Pool and in the aggregate, 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;
(ix)
the
amount of the Servicing Fees and Credit Risk Manager’s Fees paid during the
Collection Period to which such distribution relates;
(x)
by
Mortgage Pool and in the aggregate, the number and aggregate outstanding
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 (x) to be calculated utilizing the OTS delinquency
method);
88
(xi)
the
aggregate outstanding 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;
(xii)
with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan, and of each
Qualifying Substitute Mortgage Loan;
(xiii)
the
aggregate outstanding Carryforward Interest, Net Prepayment Interest Shortfalls,
Basis Risk Shortfalls, Deferred Amounts and Unpaid Basis Risk Shortfalls, if
any, for each Class of Certificates, after giving effect to the distributions
made on such Distribution Date;
(xiv)
the
Certificate Interest Rate applicable to such Distribution Date with respect
to
each Class of Certificates;
(xv)
with
respect to each Mortgage Pool, the Interest Remittance Amount and the Principal
Remittance Amount applicable to such Distribution Date;
(xvi)
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);
(xvii)
the
amount of any Overcollateralization Deficiency after giving effect to the
distributions made in such Distribution Date;
(xviii)
the
Overcollateralization Amount after giving effect to the distributions made
on
such Distribution Date;
(xix)
the
level
of LIBOR and the Certificate Interest Rate of the LIBOR Certificates for such
Distribution Date;
(xx)
the
amount of any payments made by the Cap Counterparty to the Supplemental Interest
Trust pursuant to Section 5.07(e);
(xxi)
the
amount of any Net Swap Payment to the Supplemental Interest Trust made pursuant
to Section 5.07, any Net Swap Payment to the Swap Counterparty made pursuant
to
Section 5.07, any Swap Termination Payment to the Supplemental Interest Trust
made pursuant to Section 5.07 and any Swap Termination Payment to the Swap
Counterparty made pursuant to Section 5.07;
89
(xxii)
whether
a
Trigger Event is in effect for such Distribution Date; and
(xxiii)
the
amount of any FPD Premiums, if any, for such Distribution Date.
In
addition to the information listed above, for every year in which the Depositor
is subject to Exchange Act reporting with respect to the Certificates, such
Distribution Date Statement shall also include such other information as is
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, the Servicer, the Custodian, the Swap
Counterparty, the Cap Counterparty or any Subservicer or Subcontractor therefor,
as applicable, no later than four Business Days prior to the Distribution
Date.
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vi) above,
the amounts shall also (except in the case of the report delivered to the holder
of the Class X Certificates) be expressed as a dollar amount per $1,000 of
original principal amount of Certificates.
On
any
Distribution Date after the occurrence of a Section 7.01(c) Purchase Event,
the
information required by subclauses (i), (iii), (iv), (v), (vii), (viii), (ix),
(x), (xi), (xii), (xv), (xvii), (xix), (xx) and (xxi) shall be made available
to
the NIMS Insurer, the Swap Counterparty, the Cap Counterparty, the Credit Risk
Manager, the Seller, the holder of the Class LT-R Certificate and the
LTURI-holder with regard to the Lower Tier REMIC 1 Uncertificated Regular
Interests in lieu of the Certificates.
The
Trustee shall make such report and any 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 any NIMS Insurer, Certificateholders, the Rating Agencies and any other
parties entitled thereto via the Trustee’s internet website. The Trustee’s
internet website shall initially be located at “xxx.xx.xxxxxxxxxx.xxx.”
Assistance in using the website can be obtained by calling the Trustee’s
customer service desk at (000) 000-0000. 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 or notifying the Trustee
at the applicable Corporate Trust Office. The Trustee shall have the right
to
change the way such statements are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and
the
Trustee shall provide timely and adequate notification to all above parties
regarding any such changes.
The
foregoing information and reports shall be prepared and determined by the
Trustee based solely
on
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. New
York Time four Business Days prior to the Distribution Date
(or such
other time period set forth in Section 9.23(b)), and on the information provided
to the Trustee by the Swap Counterparty and the Cap Counterparty.
In
preparing or furnishing the foregoing information to the Certificateholders
and
any NIMS Insurer, the Trustee shall be entitled to rely conclusively on the
accuracy and completeness of
the
information or data (i) regarding the Mortgage Loans (including any First
Payment Default Mortgage Loan or Delinquency Default Mortgage Loan) and the
related REO Property, that has been provided to the Trustee by the Master
Servicer based upon information received by the Master Servicer from the
Servicer, (ii) regarding the Swap Agreement, that has been provided to the
Trustee by the Swap Counterparty and (iii) regarding the Interest Rate Cap
Agreement, that has been provided to the Trustee by the Cap Counterparty, and
the Trustee shall not be obligated to verify, recompute, reconcile or
recalculate any such information or data. The Master Servicer shall be entitled
to conclusively rely on the Mortgage Loan data provided by the Servicer and
shall have no liability for any errors or omissions in such Mortgage Loan 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. Concurrently with the distribution by the Master Servicer
of
the Mortgage Loan data to the Trustee, the Master Servicer shall also provide
a
copy of such Mortgage Loan data to the Credit Risk Manager no later than 2:00
p.m. Eastern Time four Business Days prior to the Distribution
Date.
90
(b) Upon
the
reasonable advance written request of any NIMS Insurer or any Certificateholder
that is a savings and loan, bank or insurance company, which request, if
received by the Trustee, shall be promptly forwarded to the Master Servicer,
the
Master Servicer shall provide, or cause to be provided (or, to the extent that
such information or documentation is not required to be provided by the Servicer
under the Servicing Agreement, shall use reasonable efforts to obtain such
information and documentation from the Servicer, and provide) to any NIMS
Insurer and such Certificateholder such reports and access to information and
documentation regarding the Mortgage Loans as any NIMS Insurer or 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 an investment in the Certificates;
provided,
however,
that the
Master Servicer shall be entitled to be reimbursed by such Certificateholder
or
the NIMS Insurer 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, prepare
and make available to any NIMS Insurer and each Person who at any time during
the calendar year was a Certificateholder of record, 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 any
NIMS
Insurer and the Certificateholders pursuant to Sections 4.03(a)(i) and
4.03(a)(ii) on an annual basis as may be required to enable any NIMS Insurer
and
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 also include
the amount of original issue discount accrued on each Class of Certificates
and
information regarding the expenses of the Trust Fund. The Trustee shall be
deemed to have satisfied this requirement if it forwards or makes available
such
information in any other format permitted by the Code. The Master Servicer
shall
provide the Trustee with such information (to the extent available to the Master
Servicer pursuant to this Agreement and the Servicing Agreement) as is necessary
for the Trustee to prepare such reports (and the Trustee may rely solely upon
such information).
91
(d) The
Trustee shall furnish, to the extent reasonably available, 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, to the extent
reasonably available, such information as is necessary for the Trustee to
prepare such reports (and the Trustee may rely solely upon such
information).
(e) So
long
as not prohibited by applicable law, the Master Servicer shall provide to the
Depositor or to any party designated by the Depositor, as promptly as
practicable upon the Depositor's request, any and all loan-level information
that the Depositor may request in any format reasonably requested by the
Depositor.
|
Section
4.04
|
Certificate
Account.
|
(a) The
Trustee shall establish and maintain in its name, as trustee, a trust account
(the “Certificate Account”) entitled “Certificate Account, Citibank, N.A., as
Trustee, in trust for the benefit of the Holders of BNC Mortgage Loan Trust
2007-3 Mortgage Pass-Through Certificates, Series 2007-3” 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, subject
to the rights of the Trustee set forth herein. 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 ten 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 and the Lower Tier REMIC 1
Uncertificated Regular Interests issued hereunder and funds in the Certificate
Account shall be held separate and apart from and shall not be commingled with
any other monies including, without limitation, other monies of the Trustee
held
under this Agreement.
(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
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, 6.12 or 7.01; provided,
however,
that
any amounts in excess of the annual cap described in clause (b) of the
definition of “Interest Remittance Amount” and clause (b) of the definition of
“Principal Remittance Amount” in any Anniversary Year, other than costs and
expenses incurred by the Trustee pursuant to Section 6.11 or Section 6.14,
in
connection with any transfer of servicing, shall not be withdrawn from the
Certificate Account and paid to the Trustee and the Trustee’s reimbursement for
such excess amounts shall be made pursuant to Section 5.02(d)(iv);
(ii)
to
withdraw amounts deposited in the Certificate Account in error;
(iii)
to
make
payments of any investment income or earnings on the Certificate Account (A)
first, to the Master Servicer for amounts relating to the Master Servicer
Investment Period, (B) second, to Deutsche Bank National Trust Company in its
capacity as Custodian, in payment of its Custodial Compensation, if due and
(C)
then any remaining amounts of investment income or earnings to itself, all
in
accordance with Section 4.04(c);
92
(iv)
to
make
distributions to Certificateholders and payments to the Swap Counterparty
pursuant to Article V; and
(v)
to
clear
and terminate the Certificate Account pursuant to Section 7.02.
(c) Funds
in
the Certificate Account may be invested by the Trustee in Eligible Investments
(which may be obligations of the Trustee or its affiliates); provided, however,
that amounts on deposit in the Certificate Account for the one Business Day
from
and including the Master Servicer Remittance Date to but excluding the next
Business Day (the “Master Servicer Investment Period”) shall be invested by the
Trustee in accordance with the written directions provided by the Master
Servicer in Eligible Investments which mature on the next Business Day. In
the
absence of such investment direction from the Master Servicer, funds in the
Certificate Account shall remain uninvested during the Master Servicer
Investment Period. Funds in the Certificate Account may be invested by the
Trustee, other than during the Master Servicer Investment Period, so long as
all
such investments are payable on demand or mature no later than one Business
Day
prior to the related Distribution Date (unless such investments are obligations
of the Trustee, in which case such investments may mature on the related
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 for each Distribution Date shall be compensation (1) first,
to
the Master Servicer in respect of income or gain realized for the Master
Servicer Investment Period, (2) second, to Deutsche Bank National Trust Company
in its capacity as Custodian, in payment of its Custodial Compensation, if
due,
and (3) to the Trustee, any income and gain remaining. Subject to the priorities
in the preceding sentence, all income and gain realized from any such investment
for each Distribution Date shall be subject to withdrawal by the Trustee from
time to time. The amount of any losses incurred in respect of any such
investments shall be paid by the Trustee (or the Master Servicer if such losses
are incurred in respect of any investments selected by the Master Servicer
for
the Master Servicer Investment Period under the proviso to the first sentence
of
this Section 4.04(c)) for deposit in the Certificate Account out of its own
funds, without any right of reimbursement therefor, immediately as realized.
All
income and gain realized from any Eligible Investment during the Master Servicer
Investment Period shall be for the benefit of the Master Servicer, as additional
compensation, and the Trustee shall remit to the Master Servicer such amounts
no
later than on the second Business Day following the day on which such income
or
gain on investment is received by the Trustee.
93
|
Section
4.05
|
[Reserved].
|
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 or Lower
Tier REMIC 1 Uncertificated Regular Interests, on each Distribution Date the
Trustee or the Paying Agent shall make allocations and/or distributions in
accordance with the Preliminary Statement and this Article V and based solely
on
the reports for such Distribution Date provided to it by the Master Servicer
pursuant to Section 4.03(a) and on the information provided to it by the Swap
Counterparty and the Cap Counterparty. 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.
(b) The
final
distribution in respect of any Certificate shall be made only upon presentation
and surrender of such Certificate at the Corporate Trust Office; provided,
however,
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 or Lower Tier REMIC 1 Uncertificated
Regular Interests is to be made on a day that is not a Business Day, then such
payment will be made on the next succeeding Business Day.
(c) All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates in such Class equally in proportion to their respective initial
Class Principal Amounts (or Percentage Interests).
(d) The
Trustee shall make distributions to Certificateholders and to the Swap
Counterparty and any other person pursuant to this Article V and make deposits
to the Supplemental Interest Trust based solely on the information set forth
in
the monthly report prepared in accordance with Section 4.03(a), based on the
information provided by the Master Servicer, the Swap Counterparty and the
Cap
Counterparty and shall be entitled to conclusively rely on such information
and
reports, and on the calculations contained therein, when making distributions
to
Certificateholders, the Swap Counterparty and any other party hereunder. 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.
94
|
Section
5.02
|
Distributions
from the Certificate Account.
|
(a) On
each
Distribution Date on or prior to a Section 7.01(c) Purchase Event or a Trust
Fund Termination Event, the Trustee (or the Paying Agent on behalf of the
Trustee) shall withdraw from the Certificate Account the Total Distribution
Amount (to the extent such amount is on deposit in the Certificate Account),
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 created
pursuant to this Agreement and shall distribute such amount as specified in
subparagraphs (b) through (i) of this Section 5.02; provided,
that
amounts that are available for payment to the Swap Counterparty shall be paid
on
the related Swap Payment Date. On each Distribution Date after a Section 7.01(c)
Purchase Event but on or prior to a Trust Fund Termination Event, the Trustee
(or the Paying Agent acting on behalf of the Trustee) shall withdraw from the
Certificate Account the Total Distribution Amount (to the extent such amount
is
on deposit in the Certificate Account), and amounts that are available for
payment to the Swap Counterparty, and shall allocate such amount to the
interests issued in respect of REMIC 1 created pursuant to this Agreement and
shall distribute such amount as specified in subparagraphs (j) through (l)
of
this Section; provided,
that
amounts that are available for payment to the Swap Counterparty shall be paid
on
the related Swap Payment Date.
(b) On
each
Distribution Date (or, with respect to clauses (i) and (ii) below, on the
related Swap Payment Date), the Trustee shall distribute the Interest Remittance
Amount for Pool 1 and for such date in the following order of
priority:
(i)
for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) 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 Swap Payment Date and (B) the Pool Percentage for Pool 1 for such
Distribution Date and (y) the Interest Remittance Amount for Pool 1 for such
Distribution Date;
(ii)
for
deposit into the Swap Account, 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 Swap Payment Date (after giving effect to
distributions made pursuant to subsection 5.02(b)(i) above and subsection
5.02(c)(i) below) for such Distribution Date;
(iii)
to
the
Group 1 Senior Certificates, Current Interest and any Carryforward Interest
for
such Class for such Distribution Date; and
(iv)
for
application pursuant to Section 5.02(d) below, any Interest Remittance Amount
for Pool 1 remaining undistributed after application pursuant to clause (i)
through (iii) of this Section 5.02(b) for such Distribution Date.
(c) On
each
Distribution Date (or with respect to clauses (i) and (ii) below, on the related
Swap Payment Date), the Trustee shall distribute the Interest Remittance Amount
for Pool 2 for such date in the following order of priority:
(i)
for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) 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 Swap Payment Date and (B) the Pool Percentage for Pool 2 for such
Distribution Date and (y) the Interest Remittance Amount for Pool 2 for such
Distribution Date;
95
(ii)
for
deposit into the Swap Account, 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 Swap Payment Date (after giving effect to
distributions made pursuant to subsections 5.02(b)(i) and 5.02(c)(i) above)
for
such Distribution Date;
(iii)
concurrently,
on a pro
rata
basis,
to each Class of the Group 2 Senior Certificates, Current Interest and any
Carryforward Interest for each such Class and such Distribution Date;
provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of
Current Interest and Carryforward Interest that would otherwise be distributable
thereon; and
(iv)
for
application pursuant to Section 5.02(d) below, any Interest Remittance Amount
for Pool 2 remaining undistributed after application pursuant to clauses (i)
through (iii) of this Section 5.02(c) for such Distribution Date.
(d) On
each
Distribution Date, the Trustee shall distribute the aggregate of any remaining
Interest Remittance Amounts from subsections 5.02(b)(iv) and 5.02(c)(iv) above
in the following order of priority:
(i)
concurrently, on
a
pro
rata basis,
to
each Class of Senior Certificates, Current Interest and any Carryforward
Interest (taking into account distributions pursuant to subsections 5.02(b)(iii)
and 5.02(c)(iii) above) for each such Class and such Distribution Date;
provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable
thereon;
(ii)
to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
Current Interest and any Carryforward Interest for each such Class and such
Distribution Date;
(iii)
to
the
Credit Risk Manager, the Credit Risk Manager’s Fee;
(iv)
to
the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee; and
(v)
for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (f) of this Section, any Interest Remittance Amount
remaining undistributed for such Distribution Date.
96
(e) On
each
Distribution Date or related Swap Payment Date, as applicable, the Trustee
shall
distribute the Principal Distribution Amount with respect to each Mortgage
Pool
for such date as follows:
(i)
On
each
Distribution Date (or, with respect to clauses (A)(1), (A)(2), (B)(1) and (B)(2)
below of this Section 5.02(e), on the related Swap Payment 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 LIBOR Certificates
equals the Target Amount for such Distribution Date, the Trustee shall make
the
following distributions, concurrently:
(A) For
Pool 1:
The
Principal Distribution Amount for Pool 1 will be distributed in the following
order of priority:
(1) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) 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 Swap Payment Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (B) the Pool
Percentage for Pool 1 for such Distribution Date and (y) the Principal
Remittance Amount for Pool 1 for such Distribution Date;
(2) for
deposit into the Swap Account, 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 Swap Payment Date (after giving effect to
distributions made pursuant to subsections 5.02(e)(i)(A)(1) above and
5.02(e)(i)(B)(1) below, and to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date);
(3) to
the
Class A1 Certificates, until the Class Principal Amount of such Class has been
reduced to zero; and
(4) for
application pursuant to subsection 5.02(e)(ii) below, any such Principal
Distribution Amount for Pool 1 remaining undistributed for such Distribution
Date.
(B) For
Pool 2:
The
Principal Distribution Amount for Pool 2 will be distributed in the following
order of priority:
(1) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) 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 Swap Payment Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (B) the Pool
Percentage for Pool 2 for such Distribution Date and (y) the Principal
Remittance Amount for Pool 2 for such Distribution Date;
97
(2) for
deposit into the Swap Account, 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 Swap Payment Date (after giving effect to
distributions made pursuant to subsections 5.02(e)(i)(A)(1) and 5.02(e)(i)(B)(1)
above, and to the extent not paid previously or from the Interest Remittance
Amount for such Distribution Date);
(3) sequentially
to the Class A2, Class A3, Class A4 and Class A5 Certificates, in that order,
until the Class Principal Amount of each such Class has been reduced to zero;
and
(4) for
application pursuant to subsection 5.02(e)(ii) below, any such Principal
Distribution Amount for Pool 2 remaining undistributed for such Distribution
Date.
(ii) On
each
Distribution Date, the Trustee shall distribute the aggregate of any remaining
Principal Distribution Amounts from subsections 5.02(e)(i)(A)(4) and
5.02(e)(i)(B)(4) above, in the following order of priority:
(A) concurrently,
on a pro
rata
basis,
in proportion to the aggregate Class Principal Amount of the Group 1 Senior
Certificates and the Group 2 Senior Certificates related to each such Group,
after giving effect to principal distributions on such Distribution Date
pursuant to subsections 5.02(e)(i)(A)(3) and 5.02(e)(i)(B)(3) above, to the
Group 1 Senior Certificates and the Group 2 Senior Certificates, in each case
in
accordance with the Related Senior Priority, until the Class Principal Amount
of
each such Class has been reduced to zero;
(B) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
until the Class Principal Amount of each such Class has been reduced to zero;
and
(C) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (f) of
this
Section, any Principal Distribution Amount remaining after application pursuant
to clauses (A) and (B) of this Section 5.02(e)(ii).
Any
Principal Distribution Amount remaining on any Distribution Date after the
Target Amount is achieved will be applied as part of Monthly Excess Cashflow
for
such Distribution Date as provided in subsection (f) of this
Section.
(iii)
On
each
Distribution Date (or, with respect to clauses (A) and (B) below, on the related
Swap Payment 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
each Mortgage Pool for such date will be distributed in the following order
of
priority:
98
(A) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (1) 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 Swap Payment Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (2) the Pool
Percentage for the related Mortgage Pool for such Distribution Date and (y)
the
Principal Remittance Amount for such Mortgage Pool for such Distribution
Date;
(B) for
deposit into the Swap Account, 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 Swap Payment Date (after giving effect to
distributions made pursuant to subsection 5.02(e)(iii)(A) above, and to the
extent not paid previously or from the Interest Remittance Amounts from both
Mortgage Pools for such Distribution Date), to be paid concurrently and in
proportion to the related Principal Distribution Amounts available with respect
to each Mortgage Pool for such Distribution Date);
(C) (1)
so
long as any of the Subordinate Certificates are outstanding, to the Group 1
Senior Certificates in accordance with the Related Senior Priority (from amounts
generated by Pool 1, except as provided below) and to the Group 2 Senior
Certificates in accordance with the Related Senior Priority (from amounts
generated by Pool 2, except as provided below) in each case, an amount equal
to
the lesser of (x) the excess of (a) the Principal Distribution Amount for the
related Mortgage Pool for such Distribution Date over (b) the amount paid to
the
Supplemental Interest Trust for deposit into the Swap Account on the related
Swap Payment Date pursuant to clauses (A) and (B) above and (y) the Related
Senior Principal Distribution Amount for such Mortgage Pool for such
Distribution Date, in each case, until the Class Principal Amount of each such
Class has been reduced to zero; provided,
however,
to the
extent that the Principal Distribution Amount for a Mortgage Pool exceeds the
Related Senior Principal Distribution Amount for such Mortgage Pool, such excess
shall be applied to the Senior Certificates related to the other Mortgage Pool
(in accordance with the Related Senior Priority), but in an amount not to exceed
the Senior Principal Distribution Amount for such Distribution Date (as reduced
by any distributions pursuant to subclauses (x) or (y) of this clause (1) on
such Distribution Date); or (2) if none of the Subordinate Certificates are
outstanding, to the Group 1 Senior Certificates and the Group 2 Senior
Certificates (in each case in accordance with the Related Senior Priority),
the
excess of (A) the Principal Distribution Amount for the related Mortgage Pool
for such Distribution Date over (B) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account for the related Mortgage Pool on the
related Swap Payment Date pursuant to clauses (A) and (B) above, in each case
until the Class Principal Amount of each such Class has been reduced to
zero;
99
(D) to
the
Class M1 Certificates, an amount equal to the lesser of (x) the excess of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates on such date pursuant to clauses (A) through (C) above, and (y)
the
M1 Principal Distribution Amount for such date, until the Class Principal Amount
of such Class has been reduced to zero;
(E) to
the
Class M2 Certificates, an amount equal to the lesser of (x) the excess of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1 Certificates on such date pursuant to clauses
(A)
through (D) above, and (y) the M2 Principal Distribution Amount for such date,
until the Class Principal Amount of such Class has been reduced to
zero;
(F) to
the
Class M3 Certificates, an amount equal to the lesser of (x) the excess of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1 and Class M2 Certificates on such date pursuant
to
clauses (A) through (E) above, and (y) the M3 Principal Distribution Amount
for
such date, until the Class Principal Amount of such Class has been reduced
to
zero;
(G) to
the
Class M4 Certificates, an amount equal to the lesser of (x) the excess of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2 and Class M3 Certificates on such date
pursuant to clauses (A) through (F) above, and (y) the M4 Principal Distribution
Amount for such date, until the Class Principal Amount of such Class has been
reduced to zero;
(H) to
the
Class M5 Certificates, an amount equal to the lesser of (x) the excess of
(a) the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2
for such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3 and Class M4 Certificates
on
such date pursuant to clauses (A) through (G) above, and (y) the M5 Principal
Distribution Amount for such date, until the Class Principal Amount of such
Class has been reduced to zero;
(I) to
the
Class M6 Certificates, an amount equal to the lesser of (x) the excess of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4 and Class M5
Certificates on such date pursuant to clauses (A) through (H) above, and (y)
the
M6 Principal Distribution Amount for such date, until the Class Principal Amount
of such Class has been reduced to zero;
100
(J) to
the
Class M7 Certificates, an amount equal to the lesser of (x) the excess of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5 and Class
M6 Certificates on such date pursuant to clauses (A) through (I) above, and
(y)
the M7 Principal Distribution Amount for such date, until the Class Principal
Amount of such Class has been reduced to zero;
(K) to
the
Class M8 Certificates, an amount equal to the lesser of (x) the excess of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6
and Class M7 Certificates on such date pursuant to clauses (A) through (J)
above, and (y) the M8 Principal Distribution Amount for such date, until the
Class Principal Amount of such Class has been reduced to zero;
(L) to
the
Class M9 Certificates, an amount equal to the lesser of (x) the excess of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7 and Class M8 Certificates on such date pursuant to clauses (A) through
(K) above, and (y) the M9 Principal Distribution Amount for such date, until
the
Class Principal Amount of such Class has been reduced to zero;
(M) to
the
Class B1 Certificates, an amount equal to the lesser of (x) the excess of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7 and Class M8 and Class M9 Certificates on such date pursuant to clauses
(A) through (L) above, and (y) the B1 Principal Distribution Amount for such
date, until the Class Principal Amount of such Class has been reduced to
zero;
(N) to
the
Class B2 Certificates, an amount equal to the lesser of (x) the excess of (a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2 for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8, Class M9 and Class B1 Certificates on such date pursuant
to
clauses (A) through (M) above, and (y) the B2 Principal Distribution Amount
for
such date, until the Class Principal Amount of such Class has been reduced
to
zero; and
101
(O) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in Section 5.02(f), any Principal Distribution Amount remaining after
application pursuant to clauses (A) through (N) above.
Any
Principal Distribution Amount remaining on any Distribution Date after the
Target Amount is achieved will be applied as part of Monthly Excess Cashflow
for
such Distribution Date as provided in subsection (f) of this
Section.
(f) On
each
Distribution Date, the Trustee shall distribute the Monthly Excess Cashflow
for
such date in the following order of priority:
(i)
for
each
Distribution Date occurring (a) before the Stepdown Date or (b) on or after
the Stepdown Date and for which a Trigger Event is in effect, then until the
aggregate Certificate Principal Amount of the LIBOR Certificates equals the
Target Amount for such Distribution Date, in the following order of
priority:
(A) concurrently,
to the Group 1 Senior Certificates and the Group 2 Senior Certificates, in
proportion to the aggregate Class Principal Amount of the Senior Certificates
related to each Group, after giving effect to previous principal distributions
on such Distribution Date pursuant to subsection 5.02(e)(ii)(A) above, to the
Group 1 Senior Certificates and the Group 2 Senior Certificates, in each case
in
accordance with the Related Senior Priority, in reduction of their respective
Class Principal Amounts, until the Class Principal Amount of each such Class
has
been reduced to zero; and
(B) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
in reduction of their respective Class Principal Amounts, until the Class
Principal Amount of each such Class has been reduced to zero.
(ii)
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) concurrently,
to the Group 1 Senior Certificates and the Group 2 Senior Certificates, in
proportion to the aggregate Class Principal Amount of the Senior Certificates
related to each such Group, after giving effect to previous principal
distributions on such Distribution Date pursuant to subsection 5.02(e)(iii)(C)
above, to the Group 1 Senior Certificates and the Group 2 Senior Certificates,
in each case in accordance with the Related Senior Priority, in reduction of
their respective Class Principal Amounts, until the aggregate Class Principal
Amount of each such Class, 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 of the Class Principal Amounts of such Class and the Senior
Certificates, after giving effect to distributions on such Distribution Date,
equals the M1 Target Amount;
102
(C) to
the
Class M2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1 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 of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1 and Class M2 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 of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2 and Class M3 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 of the Class Principal Amounts of such Class, 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 M5 Target Amount;
(G) to
the
Class M6 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, 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 M6 Target
Amount;
(H) to
the
Class M7 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, 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 M7 Target Amount;
(I) to
the
Class M8 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6 and Class
M7
Certificates, after giving effect to distributions on such Distribution Date,
equals the M8 Target Amount;
(J) to
the
Class M9 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class M7
and
Class M8 Certificates, after giving effect to distributions on such Distribution
Date, equals the M9 Target Amount;
103
(K) to
the
Class B1 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class and the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8 and Class M9 Certificates, after giving effect to
distributions on such Distribution Date, equals the B1 Target Amount;
and
(L) to
the
Class B2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class and the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8, Class M9 and Class B1 Certificates, after giving effect
to
distributions on such Distribution Date, equals the B2 Target
Amount;
(iii)
to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
any Deferred Amount for each such Class and such Distribution Date;
(iv)
to
the
Basis Risk Reserve Fund, an amount equal to the Basis Risk Payment for such
Distribution Date, and then from the Basis Risk Reserve Fund, in the following
order of priority:
(A) concurrently,
in proportion to their respective Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls, to each Class of Senior Certificates, any applicable Basis Risk
Shortfall and Unpaid Basis Risk Shortfall for each such Class and such
Distribution Date;
(B) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
any applicable Basis Risk Shortfall and Unpaid Basis Risk Shortfall for each
such Class and such Distribution Date; and
(C) to
the
Swap Account, for application pursuant to Section 5.02(f)(vi), any amounts
remaining in the Basis Risk Reserve Fund, after taking into account
distributions pursuant to clauses (A) and (B) above, in excess of the
Required Reserve Fund Deposit for such Distribution Date;
(v)
on
the
Distribution Date occurring in July 2010 (or the next succeeding Distribution
Date on which sufficient funds are available in the Certificate Account to
make
such distributions to the Class P Certificates), $100 to the Class P
Certificates in payment of its Class P Principal Amount;
(vi)
to
the
Swap Account, the Class X Distributable Amount (less any Basis Risk Payment
for
such Distribution Date) for such Distribution Date, for application pursuant
to
Section 5.02(g)(x) and Section 5.02(g)(xi) below, sequentially and in that
order; and
(vii)
to
the
Class LT-R Certificate, any amount remaining on such date after application
pursuant to clauses (i) through (vi) above to the extent attributable to REMIC
1, and otherwise to the Class R Certificates.
104
(g) On
each
Distribution Date (or, with respect to clauses (i), (ii), (ix) and (x) below,
on
the related Swap Payment Date), the Trustee, after making all distributions
pursuant to Section 5.02(f), shall distribute the Swap Amount for such date
as follows:
(i)
to
the
Swap Counterparty, any Net Swap Payment owed to the Swap Counterparty pursuant
to the Swap Agreement for such Swap Payment Date;
(ii)
to
the
Swap Counterparty, any unpaid Swap Termination Payment (not due to a Swap
Counterparty Trigger Event) owed to the Swap Counterparty pursuant to the Swap
Agreement for such Swap Payment Date;
(iii)
concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such Class and such Distribution Date, to the extent unpaid (any shortfall
in Current Interest and Carryforward Interest to be allocated among such Classes
in proportion to the amount of Current Interest and Carryforward Interest that
would have otherwise been distributable thereon);
(iv)
to
the
Subordinate Certificates, in accordance with the Subordinate Priority, Current
Interest and any Carryforward Interest for each such Class and such Distribution
Date to the extent unpaid;
(v)
to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount as specified in Sections 5.02(f)(i) and (ii) above
for such Distribution Date, for application pursuant to the priorities set
forth
in such Sections, after giving effect to distributions pursuant to such
Sections; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(g)(v) and
all
amounts distributed pursuant to Section 5.02(g)(vi), Section 5.02(h)(iii) and
Section 5.02(h)(iv) shall not exceed the aggregate amount of cumulative Realized
Losses incurred from the Cut-off Date through the last day of the related
Collection Period less any amounts previously distributed pursuant to this
Section 5.02(g)(v) and Section 5.02(g)(vi) together with any amounts previously
distributed pursuant to Section 5.02(h)(iii) and Section
5.02(h)(iv);
(vi)
to
the
Subordinate Certificates, in accordance with the Subordinate Priority, any
Deferred Amount for each such Class and such Distribution Date, to the extent
unpaid; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(g)(vi) and
all
amounts distributed pursuant to Section 5.02(g)(v), Section 5.02(h)(iii) and
Section 5.02(h)(iv) shall not exceed the aggregate amount of cumulative Realized
Losses incurred from the Cut-off Date through the last day of the related
Collection Period less any amounts previously distributed pursuant to this
Section 5.02(g)(vi) and Section 5.02(g)(v) together with any amounts previously
distributed pursuant to Section 5.02(h)(iii) and Section
5.02(h)(iv);
(vii)
to
the
Senior Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such Class for such Distribution Date, for application pursuant to
the
priorities set forth in Section 5.02(f)(iv)(A), to the extent
unpaid;
105
(viii)
to
the
Subordinate 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 Section 5.02(f)(iv)(B), to the extent
unpaid;
(ix)
to
the
Swap Termination Receipts Account for the purchase of a replacement swap
agreement pursuant to Section 5.09(a) (if necessary);
(x)
to
the
Swap Counterparty, any unpaid Swap Termination Payment due to a Swap
Counterparty Trigger Event owed to the Swap Counterparty pursuant to the Swap
Agreement;
(xi)
to
the
Class X Certificates, any remaining amount deposited into the Swap Account
pursuant to Section 5.02(f)(iv)(C) or Section 5.02(f)(vi) and any remaining
Swap
Amount; and
(xii)
on
the
first Distribution Date on which the Class Principal Amount of each Class of
Certificates has been reduced to zero, to the Class X Certificates, all amounts
remaining in the Swap Account.
(h) On
each
Distribution Date, the Trustee shall distribute the Interest Rate Cap Amount
for
such date after making all distributions under Section 5.02(g) above as
follows:
(i)
concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such Class for such Distribution Date, to the extent unpaid pursuant to
Section 5.02(g)(iii) above (any shortfall in Current Interest and Carryforward
Interest to be allocated among such Classes in proportion to the amount of
Current Interest and Carryforward Interest that would have otherwise been
distributable thereon);
(ii)
to
the
Subordinate Certificates, in accordance with the Subordinate Priority, Current
Interest and any Carryforward Interest for such Class and such Distribution
Date
to the extent unpaid;
(iii)
to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount specified in Section 5.02(f)(i) and Section
5.02(f)(ii) above for such Distribution Date, for application pursuant to the
priorities set forth in such Sections; provided,
however,
that
the sum of all such amounts distributed pursuant to this Section 5.02(h)(iii)
and all amounts distributed pursuant to Section 5.02(h)(iv), Section 5.02(g)(v)
and Section 5.02(g)(vi) shall not exceed the aggregate amount of cumulative
Realized Losses incurred from the Cut-off Date through the last day of the
related Collection Period less any amounts previously distributed pursuant
to
this Section 5.02(h)(iii) and Section 5.02(h)(iv) together with any amounts
previously distributed pursuant to Section 5.02(g)(v) and Section
5.02(g)(vi);
(iv)
to
the
Subordinate Certificates, in accordance with the Subordinate Priority, any
Deferred Amount for each such Class and such Distribution Date to the extent
unpaid; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(h)(iv) and
all
amounts distributed pursuant to Section 5.02(h)(iii), Section 5.02(g)(v) and
Section 5.02(g)(vi) shall not exceed the aggregate amount of cumulative Realized
Losses incurred from the Cut-off Date through the last day of the related
Collection Period less any amounts previously distributed pursuant to this
Section 5.02(h)(iv) and Section 5.02(h)(iii) together with any amounts
previously distributed pursuant to Sections 5.02(g)(v) and Section
5.02(g)(vi);
106
(v)
to
the
Senior 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 Section 5.02(f)(iv)(A), to the extent
unpaid;
(vi)
to
the
Subordinate 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 Section 5.02(f)(iv)(B), to the extent
unpaid;
(vii)
to
the
Cap Termination Receipts Account for the purchase of a replacement cap agreement
pursuant to Section 5.09(b) (if necessary); and
(viii)
to
the
Class X Certificates, any remaining Interest Rate Cap Amount.
(i) On
each
Distribution Date, an amount equal to the aggregate of all Prepayment Premiums
collected during the preceding Prepayment Period shall be distributed to the
Class P Certificates.
(j) On
each
Distribution Date occurring after a Section 7.01(c) Purchase Event, but on
or
prior to a Trust Fund Termination Event, the Trustee (or the Paying Agent on
behalf of the Trustee), shall withdraw from the Certificate Account the Total
Distribution Amount (to the extent such amount is on deposit in the Certificate
Account) and amounts available for payment to the Swap Counterparty, and shall
allocate such amount to the interests issued in respect of the Lower Tier REMIC
1 Uncertificated Regular Interests created pursuant to this Agreement and shall
distribute such amount first,
for
deposit into the Swap Account, an amount equal to any Net Swap Payment or Swap
Termination Payment owed to the Swap Counterparty on the related Swap Payment
Date, second,
to the
Credit Risk Manager, the Credit Risk Manager’s Fee, third,
to the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee and fourth,
to the
LTURI-holder, any remaining Total Distribution Amount to the extent payable
on
the Lower Tier REMIC 1 Uncertificated Regular Interests as provided in the
Preliminary Statement, and fifth,
to the
Class LT-R Certificates.
(k) On
each
Swap Payment Date occurring after a Section 7.01(c) Purchase Event but on or
prior to a Trust Fund Termination Event, the Trustee shall distribute the Swap
Amount for such date first,
to the
Swap Counterparty to pay any Net Swap Payment owed to the Swap Counterparty
pursuant to the Swap Agreement for such Swap Payment Date; second,
to the
Swap Counterparty, to pay any Swap Termination Payment owed to the Swap
Counterparty pursuant to the Swap Agreement for such Swap Payment Date,
third,
if
applicable, to the Swap Termination Receipts Account, for application to the
purchase of a replacement swap agreement pursuant to Section 5.09(a); and
fourth,
any
remaining amount of Swap Amount, to the LTURI-holder.
(l) On
each
Distribution Date occurring after a Section 7.01(c) Purchase Event but on or
prior to a Trust Fund Termination Event, the Trustee shall distribute any
amounts received from the Cap Counterparty under the Interest Rate Cap Agreement
for such Distribution Date first,
to the
Cap Termination Receipts Account, for application to the purchase of a
replacement cap agreement pursuant to Section 5.09(b); and second,
any
remaining amount from the Cap Counterparty under the Interest Rate Cap
Agreement, to the LTURI-holder.
107
(m) On
each
Distribution Date, an amount equal to the aggregate FPD Premiums collected
during the preceding Prepayment Period shall be distributed to the Class X
Certificates.
|
Section
5.03
|
Allocation
of Losses.
|
(a) On
each
Distribution Date, the Class Principal Amounts of the Subordinate Certificates
will be reduced by the amount of any Applied Loss Amount for such date, in
the
following order of priority:
(i)
to
the
Class B2 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(ii)
to
the
Class B1 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(iii)
to
the
Class M9 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(iv)
to
the
Class M8 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(v)
to
the
Class M7 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(vi)
to
the
Class M6 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(vii)
to
the
Class M5 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(viii)
to
the
Class M4 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(ix)
to
the
Class M3 Certificates, until the Class Principal Amount thereof has been reduced
to zero;
(x)
to
the
Class M2 Certificates, until the Class Principal Amount thereof has been reduced
to zero; and
(xi)
to
the
Class M1 Certificates, until the Class Principal Amount thereof has been reduced
to zero.
108
|
Section
5.04
|
Advances
by Master Servicer, Servicer and Trustee.
|
(a) Subject
to Section 9.07, Advances shall be made in respect of each Master Servicer
Remittance Date as provided herein. If, on any Determination Date, the Servicer
determines that any Scheduled Payments (or in the case of Simple Interest
Mortgage Loans, the amount of any scheduled interest payments) due during the
related Collection Period (other than Balloon Payments) have not been received,
the Servicer shall advance such amount to the extent provided in the Servicing
Agreement. If the Servicer fails to remit Advances required to be made under
the
Servicing Agreement, the Master Servicer shall itself make, or shall cause
the
successor servicer to make, such Advance on the Master Servicer Remittance
Date
immediately following such Determination Date. If the Master Servicer determines
that an Advance is required, it shall on the Master Servicer Remittance Date
immediately following such Determination Date either (i) remit to the Trustee
from its own funds (or funds advanced by the 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 Master Servicer Remittance Date to the extent
that funds in the Certificate Account on such Master Servicer Remittance Date
shall be less than payments to Certificateholders required to be made on the
related Distribution Date. The Trustee shall be entitled to rely conclusively
upon any determination by the Master Servicer that an Advance, if made, would
constitute a non-recoverable advance. The Master Servicer and the Servicer
shall
be entitled to be reimbursed from the Collection Account for all Advances made
by it as provided in Section 4.02. 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.
(b) In
the
event that the Master Servicer or the Servicer fails for any reason to make
an
Advance required to be made pursuant to this Section 5.04 on or before the
Master Servicer Remittance 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 the
Servicer that would have been deposited in such Certificate Account over (b)
the
amount of any Advance made by the Master Servicer or the Servicer with respect
to such Distribution Date; provided,
however,
that the
Trustee shall be required to make such Advance only if it is not prohibited
by
law from doing so and it has determined that such Advance would be recoverable
from amounts to be received with respect to such Mortgage Loan, including late
payments, Liquidation Proceeds, Insurance Proceeds, or otherwise. The Trustee
shall be entitled to be reimbursed from the Collection Account and/or the
Certificate Account for Advances made by it pursuant to this Section 5.04 as
if
it were the Master Servicer.
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|
Section
5.05
|
Compensating
Interest Payments.
|
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicer. Any Compensating Interest Payments made
by
the Servicer shall be a component of the 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 Certificateholders, a Basis Risk Reserve Fund, into which
Xxxxxx Brothers Holdings Inc. (“LBH”) shall initially deposit $1,000. 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 monies, including, without limitation, other monies of the Trustee held
pursuant to this Agreement.
(b) The
Trustee (or Paying Agent) shall make withdrawals from the Basis Risk Reserve
Fund to make distributions pursuant to Section 5.02(f)(iv) hereof in accordance
with the Distribution Date Statement. Notwithstanding the foregoing, the initial
deposit of $1,000 made pursuant to subsection (a) above may be applied by the
Trustee (or Paying Agent) to make such distributions.
(c) Funds
in
the Basis Risk Reserve Fund shall be invested in Eligible Investments. Any
earnings on such amounts shall be distributed on each Distribution Date to
the
Holders of the Class X Certificates. The Class X Certificates shall evidence
ownership of the Basis Risk Reserve Fund for federal income tax purposes and
LBH
on behalf of the Holder thereof shall direct the Trustee, in writing, as to
investment of amounts on deposit therein. LBH shall be liable for any losses
incurred on such investments. In the absence of written instructions from LBH
as
to investment of funds on deposit in the Basis Risk Reserve Fund, such funds
shall be invested in the Xxxxxx Xxxxxxx Prime Liquidity Institutional Class
(302) Money Market Fund. The Basis Risk Reserve Fund shall be terminated after
the earlier of (A) a Section 7.01(c) Purchase Event or (B) a Trust Fund
Termination Event and any funds remaining in such fund upon such termination
shall be released to Holders of the Class X Certificates.
|
Section
5.07
|
Supplemental
Interest Trust.
|
(a) A
separate trust is hereby established (the “Supplemental Interest Trust”), the
corpus of which shall be held by the Trustee, in trust, for the benefit of
the
Certificateholders and the Swap Counterparty. The Trustee, as trustee of the
Supplemental Interest Trust, shall establish an account (the “Swap Account”),
into which LBH shall initially deposit $1,000. The Swap Account shall be an
Eligible Account, and funds on deposit therein shall be held separate and apart
from, and shall not be commingled with, any other monies, including, without
limitation, other monies of the Trustee held pursuant to this Agreement. After
payment in full to the Swap Counterparty of any Net Swap Payments or Swap
Termination Payments owed to it pursuant to the Swap Agreement, any funds
remaining in such fund upon termination of the Swap Account shall be released
to
Holders of the Class X Certificates pursuant to Sections 5.02(g)(xi) and
5.02(g)(xii).
110
(b) In
addition, the Trustee, as trustee of the Supplemental Interest Trust, shall
establish an account (the “Interest Rate Cap Account”), into which LBH shall
initially deposit $1,000. 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 other monies, including, without limitation,
other monies of the Trustee held pursuant to this Agreement.
(c) In
addition, on the Closing Date, the Trustee, on behalf of the Supplemental
Interest Trust, shall establish an account (the “Collateral Account”) into which
funds shall be deposited pursuant to Section 5.07(h). The Collateral Account
shall be an Eligible Account, and funds on deposit therein shall be held
separate and apart from, and shall not be commingled with, any other monies,
including, without limitation, other monies of the Trustee held pursuant to
this
Agreement.
(d) The
Trustee shall deposit into the Swap Account any Net Swap Payment required
pursuant to Sections 5.02(b), (c), (e) and (j), any Swap Termination Payment
required pursuant to Sections 5.02(b), (c), (e) and (j), any amounts received
from the Swap Counterparty under the Swap Agreement and any amounts distributed
from the Basis Risk Reserve Fund required pursuant to Sections 5.02(f)(iv)(C)
and (f)(vi), and shall distribute from the Swap Account any Net Swap Payment
required pursuant to Section 5.02(g)(i) or Section 5.02(k), as applicable,
or
Swap Termination Payment required pursuant to Section 5.02(g)(ii), Section
5.02(g)(x) or Section 5.02(k), as applicable. Notwithstanding
the foregoing, the initial deposit of $1,000 made pursuant to subsection (a)
above may be applied by the Trustee to make such distributions of any Net Swap
Payment or any Swap Termination Payment.
(e) The
Trustee shall deposit into the Interest Rate Cap Account any amounts received
from the Cap Counterparty under the Interest Rate Cap Agreement and shall
distribute from the Interest Rate Cap Account any Interest Rate Cap Amount
pursuant to Section 5.02(h) or Section 5.02(l), as applicable. Notwithstanding
the foregoing, the initial deposit of $1,000 made pursuant to subsection (b)
above may be applied by the Trustee to make such distributions.
(f) Funds
in
the Swap Account shall be invested in Eligible Investments. Any earnings on
such
amounts shall be distributed on each Distribution Date pursuant to Section
5.02(g) or Section 5.02(k), as applicable. The Class X Certificates shall
evidence ownership of the Swap Account for federal income tax purposes and
the
Holder thereof shall direct the Trustee, in writing, as to investment of amounts
on deposit therein. LBH shall be liable for any losses incurred on such
investments. In the absence of written instructions from the Class X
Certificateholders as to investment of funds on deposit in the Swap Account,
such funds shall be invested in the Xxxxxx Xxxxxxx Prime Liquidity Institutional
Class (302) Money Market Fund. Any amounts on deposit in the Swap Account in
excess of the Swap Amount on any Distribution Date shall be held for
distribution pursuant to Section 5.02(g) or Section 5.02(k), as applicable,
on
the following Distribution Date.
(g) Funds
in
the Interest Rate Cap Account shall be invested in Eligible Investments. Any
earnings on such amounts shall be distributed on each Distribution Date pursuant
to Section 5.02(h) or Section 5.02(l), as applicable. The Class X Certificates
shall evidence ownership of the Interest Rate Cap Account for federal income
tax
purposes and the Holder 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 the
Class X Certificateholders as to investment of funds on deposit in the Interest
Rate Cap Account, such funds shall be invested in the Xxxxxx Xxxxxxx Prime
Liquidity Institutional Class (302) Money Market Fund. Any amounts on deposit
in
the Interest Rate Cap Account in excess of the Interest Rate Cap Amount on
any
Distribution Date shall be held for distribution pursuant to Section 5.02(h)
or
Section 5.02(l), as applicable, on the following Distribution Date.
111
(h) Funds
or
collateral required to be held pursuant to the Credit Support Annex shall be
deposited into the Collateral Account. Funds posted by the Cap Counterparty
(or
its credit support provider) and/or the Swap Counterparty (or its credit support
provider) in the Collateral Account shall be invested in Eligible Investments
at
the direction of the Cap Counterparty and/or Swap Counterparty, provided no
early Termination Date has been designated under the Cap Agreement and/or Swap
Agreement as the result of a Swap Counterparty Termination Event, respectively.
Any interest earnings on such amounts shall be remitted to the Cap Counterparty
and/or Swap Counterparty, as applicable, pursuant to the terms of the Credit
Support Annex. For federal income tax purposes, the Swap Counterparty shall
be
considered the owner of funds deposited in the Collateral Account on account
of
the Swap Agreement and the Cap Counterparty shall be considered the owner of
the
funds deposited in the Collateral Account on account of the Interest Rate Cap
Agreement. The Trustee shall not be liable for any losses incurred on such
investments. In the absence of written instructions from the Cap Counterparty
(or its credit support provider) and/or the Swap Counterparty (or its credit
support provider) as to investment of funds on deposit in the Collateral
Account, such funds shall be invested in the Xxxxxx Xxxxxxx Prime Liquidity
Institutional Class (302) Money Market Fund. 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, remitted to the Swap Account and distributed as all or
a
portion of such Net Swap Payment or Swap Termination Payment pursuant to Section
5.02(g) or Section 5.02(k), as applicable. On any Distribution Date as to which
a shortfall exists with respect to Interest Rate Cap Amounts owed by the Cap
Counterparty as a result of its failure to make payments pursuant to the
Interest Rate Cap Agreement, amounts necessary to cover such shortfall shall
be
removed from the Collateral Account, remitted to the Interest Rate Cap Account
and distributed as all or a portion of such Interest Rate Cap Amount pursuant
to
Section 5.02(h) or Section 5.02(l), as applicable. The Trustee is hereby
authorized to release any amounts on deposit in the Collateral Account required
to be returned to the Cap Counterparty (or its credit support provider) and/or
the Swap Counterparty (or its credit support provider), as applicable, as a
result of (i) the termination of the Swap Agreement or Interest Rate Cap
Agreement, as applicable, (ii) the procurement of a guarantor, (iii) the
reinstatement of required ratings or (iv) otherwise pursuant to the Swap
Agreement, shall be released directly to the Swap Counterparty and/or the Cap
Counterparty, as applicable, pursuant to the terms of the Credit Support
Annex.
(i) Upon
termination of the Trust Fund, any amounts remaining in the Swap Account shall
be distributed pursuant to the priorities set forth in Section 5.02(g) or
Section 5.02(k), as applicable.
112
(j) Upon
termination of the Trust Fund, any amounts remaining in the Interest Rate Cap
Account shall be distributed pursuant to the priorities set forth in Section
5.02(h) or Section 5.02(l), as applicable.
(k) Upon
termination of the Trust Fund, any amounts remaining in the Collateral Account
shall be distributed as required pursuant to the terms of the Credit Support
Annex.
(l) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the holder of the Class X Certificates unless and until
the date when either (a) there is more than one Class X Certificateholder or
(b)
any Class of Certificates in addition to the Class X Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust for
federal income tax purposes. The Trustee shall not be responsible for any entity
level tax reporting for the Supplemental Interest Trust.
(m) 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
or the Interest Rate Cap Agreement shall be deemed to be an obligation of the
Supplemental Interest Trust.
(n) In
the
event that either the Swap Counterparty or the Cap Counterparty fails to perform
any of its obligations under the Swap Agreement or the Interest Rate Cap
Agreement, respectively (including, without limitation, its obligations to
make
any payment or transfer collateral), or breaches any of its representations
and
warranties under the Swap Agreement or the Interest Rate Cap Agreement, as
applicable, or in the event that an Event of Default, Termination Event, or
Additional Termination Event occurs (as such terms are defined in the Swap
Agreement or the Interest Rate Cap Agreement, as applicable), the Trustee,
on
behalf of the Supplemental Interest Trust, shall (upon a Responsible Officer
of
the Trustee receiving written notice or obtaining actual knowledge of the
occurrence thereof), as soon as practicable following such written notice or
obtaining knowledge, notify the Swap Counterparty or Cap Counterparty, as
applicable, and give any notice of such failure and make any demand for payment
pursuant to the Swap Agreement or Interest Rate Cap Agreement, as applicable.
In
the event that the Swap Counterparty’s obligations under the Swap Agreement or
Cap Counterparty’s obligations under the Interest Rate Cap Agreement are at any
time guaranteed by a third party, then to the extent that the Swap Counterparty
or Cap Counterparty fails to make any payment or delivery required under terms
of the Swap Agreement or the Interest Rate Cap Agreement, as applicable, the
Trustee, on behalf of the Supplemental Interest Trust, shall (upon a Responsible
Officer of the Trustee receiving written notice or obtaining actual knowledge
of
the occurrence thereof), as soon as practicable following such written notice
or
obtaining knowledge, demand that such guarantor make any and all payments then
required to be made by the applicable guarantor.
|
Section
5.08
|
Rights
of Swap Counterparty.
|
(a) The
Swap
Counterparty shall be deemed a third-party beneficiary of this Agreement to
the
same extent as if it were a party hereto and shall have the right, upon
designation of an “Early Termination Date” (as defined in the Swap Agreement),
to enforce its rights under this Agreement, which rights include but are not
limited to the obligation of the Trustee (A) to deposit any Net Swap Payment
required pursuant to Sections 5.02(b), (c), (e) and (j), and any Swap
Termination Payment required pursuant to Sections 5.02(b), (c), (e) and (j),
into the Swap Account, (B) to deposit any amounts from the Basis Risk Reserve
Fund required pursuant to Sections 5.02(f)(iv)(C) and Section 5.02(f)(vi) into
the Swap Account, (C) to pay any Net Swap Payment required pursuant to Section
5.02(g)(i) or Section 5.02(k), as applicable, or Swap Termination Payment
required pursuant to Sections 5.02(g)(ii), Section 5.02(g)(x), or Section
5.02(k), as applicable to the Swap Counterparty and (D) to establish and
maintain the Swap Account, to make such deposits thereto, investments therein
and distributions therefrom as are required pursuant to Section 5.07. 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.
113
|
Section
5.09
|
Termination
Receipts.
|
(a) In
the
event of an “Early Termination Event” as defined under the Swap Agreement, (i)
any Swap Termination Payment made by the Swap Counterparty to the Swap Account
and paid pursuant to Section 5.02(g)(ix), Section 5.02(j) or Section 5.02(k),
as
applicable (“Swap Termination Receipts”) shall be deposited in a segregated
non-interest bearing account which shall be an Eligible Account established
by
the Trustee (the “Swap Termination Receipts Account”) and (ii) any amounts
received from a replacement Swap Counterparty (“Swap Replacement Receipts”)
shall be deposited in a segregated non-interest bearing account which shall
be
an Eligible Account established by the Trustee (the “Swap Replacement Receipts
Account”). Solely upon written direction of the Depositor, the Trustee shall
invest, or cause to be invested, funds held in the Swap Termination Receipts
Account and the Swap Replacement Receipts Account in time deposits of the
Trustee as permitted by clause (ii) of the definition of Eligible Investments
or
as otherwise directed in writing by a majority of the Certificateholders. All
such investments shall be payable on demand or mature on a Swap Payment Date,
a
Distribution Date or such other date as directed by the Certificateholders.
If
no such direction is given by the Depositor, such funds shall remain uninvested.
All such Eligible Investments shall be made in the name of the Trustee of the
Supplemental Interest Trust (in its capacity as such) or its nominee. The
Trustee shall not be liable for any losses incurred on such investments. All
income and gain realized from any such investment shall be deposited in the
Swap
Termination Receipts Account or the Swap Replacement Receipts Account, as
applicable, and all losses, if any, shall be borne by the related account.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Swap Agreement(s)
or
procure a replacement guarantor, if applicable, and the Trustee shall promptly,
at the written direction of, and with the assistance and cooperation of the
Depositor, use amounts on deposit in the Swap Termination Receipts Account,
if
necessary, to enter into replacement Swap Agreement(s) or to execute any other
agreements with respect to such replacement guarantor, if applicable, which
shall be executed and delivered by the Trustee on behalf of the Supplemental
Interest Trust upon receipt of written confirmation from each Rating Agency
(if
required pursuant to the terms of the Swap Agreement) that such replacement
Swap
Agreement(s) will not result in the reduction or withdrawal of the rating of
any
outstanding Class of Certificates with respect to which it is a Rating Agency.
114
Amounts
on deposit in the Swap Replacement Receipts Account shall be held for the
benefit of the related Swap Counterparty and paid to such Swap Counterparty
if
the Supplemental Interest Trust is required to make a payment to such Swap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so applied shall, following the termination or expiration of such
replacement swap agreement, be paid to the Class X Certificates.
(b) In
the
event of an “Early Termination Event” as defined under the Interest Rate Cap
Agreement, (i) any Cap Termination Payment made by the Cap Counterparty to
the
Interest Rate Cap Account and paid pursuant to Section 5.02(h)(vii) or
Section 5.02(l) (“Cap Termination Receipts”) shall be deposited in a
segregated non-interest bearing account which shall be an Eligible Account
established by the Trustee (the “Cap Termination Receipts Account”) and (ii) any
amounts received from a replacement Cap Counterparty (“Cap Replacement
Receipts”) shall be deposited in a segregated non-interest bearing account which
shall be an Eligible Account established by the Trustee (the “Cap Replacement
Receipts Account”). Solely upon written direction of the Depositor, the Trustee
shall invest, or cause to be invested, funds held in the Cap Termination
Receipts Account and the Cap Replacement Receipt 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 shall be payable on demand or mature on a Interest Rate Cap
Payment Date, a Distribution Date or such other date as directed by the
Certificateholders. If no such direction is given by the Depositor, such funds
shall remain uninvested. All such Eligible Investments shall be made in the
name
of the Trustee of the Supplemental Interest Trust (in its capacity as such)
or
its nominee. The Trustee shall not be liable for any losses incurred on such
investments. All income and gain realized from any such investment shall be
deposited in the Cap Termination Receipts Account or the Cap Replacement Receipt
Account and all losses, if any, shall be borne by such account.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall prepare the replacement Interest Rate Cap
Agreement(s) and the Trustee shall promptly, at the written direction of the
Depositor, use the funds on deposit in the Cap Termination Receipts Account,
if
needed, to enter into replacement Interest Rate Cap 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 Interest Rate Cap 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. Any amounts not so applied shall be paid to
the
Class X Certificates.
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.
115
(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 Servicer, the Swap
Counterparty, the Cap Counterparty or the Credit Risk Manager 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.
(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
direction or with the consent of Holders 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 (A) Event of Default (other than resulting from a failure by the Master
Servicer to (i) remit funds (or make Advances) or (ii) furnish information
to
the Trustee when required to do so) or (B)(1) a breach of the Swap
Counterparty’s representations and warranties under the Swap Agreement or (2)
Event of Default, Termination Event or Additional Termination Event (as such
terms are defined in the Swap Agreement) 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 Corporate Trust
Office, and such notice references the Holders of the Certificates and this
Agreement;
116
(iii)
[Reserved];
(iv)
No
provision of this Agreement shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it; and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Master Servicer under this
Agreement;
(v)
The
Trustee shall not be responsible for any act or omission of the Master Servicer,
the Servicer, the Credit Risk Manager, the Depositor, the Seller, the Custodian,
the Swap Counterparty or the Cap Counterparty.
(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 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 the Servicer under this Agreement or
the
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.
(g) The
Trustee shall not be held liable by reason of any insufficiency in the
Collection Account 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).
117
(h) Except
as
otherwise provided herein, the Trustee shall not have any duty (A) to undertake
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 ensure the maintenance of any such recording or filing
or depositing or to undertake any rerecording, refiling or redepositing of
any
such statement or agreement, (B) to see to any insurance or claim under any
Insurance Policy, (C) to establish or maintain 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 or the Supplemental Interest Trust 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, the Servicer,
the Swap Counterparty, the Cap Counterparty, the Depositor or the Credit Risk
Manager 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, neither the Paying Agent nor the
Trustee shall be liable for special, indirect or consequential losses or damages
of any kind whatsoever (including, but not limited to, lost profits), even
if
the Paying Agent or the Trustee, as applicable, 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) On
or
before March 15 of each calendar year for so long as the Depositor is subject
to
Exchange Act reporting requirements for the BNC Mortgage Loan Trust 2007-3,
beginning with March 15, 2008, the Trustee shall deliver to the Sponsor, the
Master Servicer, the NIMS Insurer and the Depositor a report regarding its
assessment of compliance with the Relevant Servicing Criteria identified in
Exhibit S hereto with respect to the Trustee, as of and for the period ending
the end of the fiscal year of the Trust Fund. Each such report shall include
(a)
a statement of the party’s responsibility for assessing compliance with the
Servicing Criteria applicable to such party, (b) a statement that such party
used the criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to
assess compliance with the Relevant Servicing Criteria, (c) disclosure of any
material instance of noncompliance identified by such party and (d) a statement
that a registered public accounting firm has issued an attestation report on
such party’s assessment of compliance with the Relevant Servicing Criteria,
which report shall be delivered by the Trustee as provided in Section 6.01(m).
In addition, on or before March 15th of each calendar year for so long as the
Depositor is subject to Exchange Act reporting requirements for the BNC Mortgage
Loan Trust 2007-3, beginning with March 15, 2008, the Trustee shall, at its
own
expense, furnish or cause to be furnished to the Sponsor, the NIMS Insurer
and
the Depositor an assessment of compliance and accountant’s attestation of any
Subcontractor with respect to the Trustee.
118
(m) On
or
before March 15th of each calendar year for so long as the Depositor is subject
to Exchange Act reporting requirements for the BNC Mortgage Loan Trust 2007-3,
beginning with March 15, 2008, the Trustee shall, at its own expense, cause
a
registered firm of independent public accountants (who may also render other
services to Trustee), which is a member of the American Institute of Certified
Public Accountants, to furnish to the Sponsor, the Master Servicer, the NIMS
Insurer and the Depositor a report to the effect that such firm attests to,
and
reports on, the assessment made by such asserting party pursuant to Section
6.01(l) above, which report shall be made in accordance with standards for
attestation engagements issued or adopted by the PCAOB.
(n) For
so
long as the Depositor is subject to Exchange Act reporting requirements for
the
BNC Mortgage Loan Trust 2007-3 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 elements of the servicing criteria set forth under
Item 1122(d) of Regulation AB will be addressed in assessments of compliance
and
accountant’s attestations provided by each such Subcontractor.
(o) For
so
long as the Depositor is subject to Exchange Act reporting requirements for
the
BNC Mortgage Loan Trust 2007-3, the Trustee shall notify the Sponsor, the Master
Servicer, the NIMS Insurer and the Depositor within three (3) Business Days
of
the related Distribution Date (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 V hereto or any of their affiliates. On or before March 1st of each
year, the Depositor shall distribute the information in Exhibit V to the
Trustee.
(p) The
Trustee, including in its individual capacity, agrees to indemnify the
Depositor, and the Master Servicer, and their respective directors, officers,
employees and agents and the Trust Fund and hold each of them harmless from
and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon any failure by the
Trustee to comply with the provisions of Subsections 6.01(l), (n) and (o) above;
provided,
however,
that in
no event shall the Trustee be liable for any special, consequential, indirect
or
punitive damages pursuant to this Section 6.01(p), even if advised of the
possibility of such damages.
(q) Notwithstanding
anything in this Agreement, the Servicing Agreement or the Credit Risk
Management Agreement to the contrary, the Trustee shall have no duty or
obligation to enforce the Credit Risk Management Agreement or to supervise,
monitor or oversee the activities of the Servicer under its Credit Risk
Management Agreement with respect to any action taken or not taken by the
Servicer at the direction of the Seller or pursuant to a recommendation of
the
Credit Risk Manager.
119
(r) The
Trustee shall provide the NIMS Insurer written notice promptly upon
determination that there are insufficient funds to make any Net Swap Payments
owed by the Supplemental Interest Trust to the Swap Counterparty. The NIMS
Insurer may, at its sole discretion, advance any such required payments, and
the
Trustee is hereby authorized to make such payments on behalf of the NIMS
Insurer.
(s) The
Paying Agent and Certificate Registrar shall have the same rights, protections,
immunities and indemnities as are afforded to the Trustee pursuant to this
Article VI.
|
Section
6.02
|
Certain
Matters Affecting the Trustee.
|
Except
as
otherwise provided in Section 6.01:
(a) The
Trustee may request, and may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer’s Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document believed
by
it to be genuine and to have been signed or presented by the proper party or
parties;
(b) The
Trustee may consult with counsel and any advice of its counsel or Opinion of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(c) The
Trustee shall not be personally liable for any action taken, suffered or omitted
by it in good faith and reasonably believed by it to be authorized or within
the
discretion or rights or powers conferred upon it by this Agreement;
(d) 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 or, if such Classes have
been
retired pursuant to a Section 7.01(c) Purchase Event, the LTURI-holder;
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;
(e) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians or attorneys,
which agents, custodians or attorneys shall have any and all of the rights,
powers, duties and obligations of the Trustee conferred on them by such
appointment, provided that the Trustee shall continue to be responsible for
its
duties and obligations hereunder to the extent provided herein, and provided
further that the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care
by
the Trustee;
120
(f) The
Trustee shall not be under any obligation to exercise any of the trusts or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto, in each case at the request, order
or direction of any of the Certificateholders 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;
(g) The
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of such
act;
and
(h) The
Trustee shall not be required to give any bond or surety in respect of the
execution of the Trust Fund or Supplemental Interest Trust 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 Servicing Agreement, the Custodial Agreement, the Swap Agreement
or the Interest Rate Cap Agreement, the Certificates (other than the certificate
of authentication on the Certificates) or the Lower Tier REMIC 1 Uncertificated
Regular Interests, or of any Mortgage Loan, or related document save that the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against
it
in accordance with its terms except that such enforceability may be subject
to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law. The Trustee shall not be accountable for the use or
application by the Depositor of funds paid to the Depositor in consideration
of
the assignment of the Mortgage Loans to the Trust Fund by the Depositor or
for
the use or application of any funds deposited into the Collection Account,
the
Certificate Account, any Escrow Account or any other fund or account maintained
with respect to the Certificates. The Trustee shall not be responsible for
the
legality or validity of this Agreement, the Servicing Agreement, the Custodial
Agreement, the Swap Agreement or the Interest Rate Cap Agreement or the
validity, priority, perfection or sufficiency of the security for the
Certificates or the Lower Tier REMIC 1 Uncertificated Regular Interests issued
or intended to be issued hereunder. The Trustee shall not, except as otherwise
provided herein, have any responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement.
121
|
Section
6.04
|
Trustee
May Own Certificates.
|
The
Trustee and any Affiliate or agent of it in its individual or any other capacity
may become the owner or pledgee of Certificates and may transact banking and
trust business with the other parties hereto and their Affiliates with the
same
rights it would have if it were not Trustee or such agent.
|
Section
6.05
|
Eligibility
Requirements for Trustee.
|
The
Trustee hereunder shall at all times be (i) an institution whose accounts are
insured by the FDIC, (ii) a corporation or national banking association,
organized and doing business under the laws of any State or the United States
of
America, authorized under such laws to exercise corporate trust powers, having
a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority and (iii) not an
Affiliate of the Master Servicer or the 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 addition, the Trustee (i) may not be an originator
of
Mortgage Loans, the Master Servicer, the Servicer, the Depositor or an affiliate
of the Depositor unless the Trustee is in an institutional trust department
of
the Trustee and (ii) must be authorized to exercise corporate trust powers
under
the laws of its jurisdiction of organization. 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, the Swap Counterparty, the
Cap Counterparty, any NIMS Insurer 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 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 its property shall be appointed, or any public officer shall
take charge or control of the Trustee or 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, (v) the Trustee (or the Paying Agent)
shall
fail to deliver the information or reports, assessments or attestations required
pursuant to Sections 6.01(l) through (o) or (vi) the Paying Agent shall fail
to
provide the information required pursuant to Subsection 3.08(b) hereof or (vii)
the Depositor desires to replace the Trustee with a successor trustee, then
the
Depositor, the Master Servicer or any NIMS Insurer shall remove the Trustee
or
the Paying Agent, as applicable, 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 the Trustee
so
removed, one copy each to the successor trustee, and one copy to each of the
Master Servicer and any NIMS Insurer; provided,
however, that
if
the Trustee is removed for the failure to provide the accountant’s attestation
pursuant to Section 6.01(m) of this Agreement, the Trustee shall reimburse
the
Depositor for reasonable out-of-pocket costs incurred by the Depositor in
providing for a successor Trustee.
122
(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 to 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 the Depositor, one copy to the Trustee, one copy each to the Master
Servicer and any NIMS Insurer; 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, any NIMS Insurer,
the Swap Counterparty and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as trustee herein. A predecessor trustee (or
its
custodian) shall deliver to any successor trustee (or assign to the Trustee
its
interest under the Custodial Agreement, to the extent permitted thereunder),
all
Mortgage Files and documents and statements related to each Mortgage 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.
123
(b) No
successor trustee shall accept appointment as provided in this Section unless
at
the time of such appointment such successor trustee shall be eligible under
the
provisions of Section 6.05.
(c) Upon
acceptance of appointment by a successor trustee as provided in this Section,
the predecessor trustee shall mail notice of the succession of such trustee
to
all Holders of Certificates at their addresses as shown in the Certificate
Register and to any Rating Agency. The expenses of such mailing shall be borne
by the predecessor trustee.
(d) Upon
the
resignation or removal of the Trustee pursuant to this Section 6.06, the Trustee
shall deliver the amounts held in its possession for the benefit of the
Certificateholders to the successor trustee or the successor trustee’s designee
upon the appointment of the successor trustee.
|
Section
6.08
|
Merger
or Consolidation of Trustee.
|
Any
Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the corporate trust business of the Trustee, shall be the successor to the
Trustee hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided
that
such Person shall be eligible under the provisions of Section 6.05. Unless
and
until a Form 15 suspension notice shall have been filed, as a condition to
a
succession to the Trustee under this Agreement by any Person (i) into which
the
Trustee may be merged or consolidated, or (ii) which may be appointed as a
successor to the Trustee, the Trustee shall notify the Sponsor, the Master
Servicer and the Depositor, at least 15 calendar days prior to the effective
date of such succession or appointment, of such succession or appointment and
shall furnish to the Sponsor, the Master Servicer and the Depositor in writing
and in form and substance reasonably satisfactory to the Sponsor, the Master
Servicer and 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
Sections 5.04 and 6.14 hereof shall not be affected or assigned by the
appointment of a co-trustee. Trustee shall not be responsible for any action
or
omission of any separate trustee, co-trustee or custodian. Notwithstanding
the
foregoing, at any time during the period that a Form 10-K is being filed with
respect to the Trust Fund in accordance with the Exchange Act and the rules
and
regulations of the Commission, no such co-custodian or co-trustee shall be
vested with any powers, rights and remedies under this Agreement unless such
party has agreed to comply with all Regulation AB requirements set forth under
this Agreement or the Custodial Agreement, as applicable.
124
(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 monies 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.
125
(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.
(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 and for which the Trustee does not elect
to take responsibility for assessing compliance with the Servicing Criteria
in
accordance with Regulation AB Telephone Interpretation 17.06, without (a) giving
notice to the Seller, the Master Servicer, the Sponsor and the Depositor and
(b)
requiring any such Subcontractor to provide to the Trustee an assessment report
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, including in its individual capacity, shall
indemnify the Sponsor, the Depositor and the Master Servicer and any director,
officer, employee or agent of each of the Sponsor, 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 the failure by the Trustee (i) to give
notice of the engagement of any Subcontractor or (ii) to require any
Subcontractor to provide the Trustee, the Master Servicer and the Depositor
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.
126
(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 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 including in its individual capacity and its directors, officers,
employees and agents shall be entitled to indemnification from the Trust Fund
for any loss, liability or expense incurred in connection with any legal
proceeding or incurred without negligence or willful misconduct on 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 any of its directors, officers, employees or agents for such purpose) arising
out of, or in connection with, the acceptance or administration of the trusts
created hereunder or in connection with the performance of their duties
hereunder or under the Swap Agreement, the Interest Rate Cap Agreement, the
Mortgage Loan Sale Agreement, the Transfer Agreement, the Servicing Agreement
or
the 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:
127
(i)
with
respect to any such claim, the Trustee shall have given the Depositor, the
Master Servicer, any NIMS Insurer and the Holders written notice thereof
promptly after a Responsible Officer of the Trustee shall have knowledge thereof
provided
that the
failure to provide such prompt written notice shall not affect the Trustee’s
right to indemnification hereunder;
(ii)
while
maintaining control over its own defense, the Trustee shall cooperate and
consult fully with the Depositor, the Master Servicer and any NIMS Insurer
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, the Master Servicer and any NIMS Insurer, which
consent shall not be unreasonably withheld.
The
Trustee shall be further indemnified by the Seller for and held harmless
against, any loss, liability or expense arising out of, or in connection with,
the provisions set forth in the fifth paragraph of Section 2.01(a) hereof,
including, without limitation, all costs, liabilities and expenses (including
reasonable legal fees and expenses) of investigating and defending itself
against any claim, action or proceeding, pending or threatened, relating to
the
provisions of such paragraph.
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.
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Section
6.12
|
Fees
and Expenses of Trustee and
Custodian.
|
The
Trustee shall be entitled to any investment income and earnings on the
Certificate Account (other than any amounts earned during the Master Servicer
Investment Period or required to be deducted in respect of the Custodial
Compensation as provided in Section 4.04(c)). Deutsche Bank National Trust
Company, in its capacity as Custodian, shall be entitled to the Custodial
Compensation provided for in the Custodial Agreement which shall be paid by
the
Trustee as invoiced by the Custodian first from investment income and earnings
on the Certificate Account (but only after payment first to the Master Servicer
for any investment income or earnings on the Certificate Account during the
Master Servicer Investment Period) and, if insufficient to pay the Custodial
Compensation, as a corporate obligation of the Trustee. The Trustee shall be
entitled to reimbursement of all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with this Agreement (including
fees and expenses of its counsel and all persons not regularly in its employment
and any amounts described in Section 10.01 to which the Trustee is entitled
as
provided therein), except for expenses, disbursements and advances that either
(i) do not constitute “unanticipated expenses” within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii) or (ii) arise from its negligence, bad
faith or willful misconduct. If the Custodial Compensation is not fully paid
from (i) the Trustee’s own funds or (ii) investment income and earnings on
amounts on deposit in the Certificate Account then prior to any distribution
to
Certificateholders pursuant to Section 5.02 hereof, the Trust Fund shall
immediately reimburse the Trustee, or the Custodian, as applicable, upon demand
for any such shortfall from amounts on deposit in the Certificate Account.
To
the extent required under Section 20 of the Custodial Agreement, the Trustee
is
hereby authorized to pay any indemnification amounts from amounts on deposit
in
the Certificate Account prior to any distributions to Certificateholders
pursuant to Section 5.02 hereof.
128
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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 it 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 amounts, it may withdraw such
request.
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Section
6.14
|
Events
of Default; Trustee To Act; Appointment of
Successor.
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(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) (other than
with
respect to the information referred to in clauses (xviii), (xix), (xx) and
(xxi)
of such 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 the Holders of not less than 25% of the Class
Principal Amount of each Class of Certificates affected thereby; or
(ii)
Any
failure by the Master Servicer to duly perform, within the required time period
and without notice, its obligations to provide any certifications required
pursuant to Sections 9.25 and 9.26, which failure continues unremedied for
a
period of five (5) days from the date of delivery required with respect to
such
certification; or
(iii)
Except
with respect to those items listed in clause (ii) above, any failure by the
Master Servicer to duly perform, within the required time period, without notice
or grace period, its obligations to provide any information, data or materials
required to be provided hereunder pursuant to Sections 9.23 and 9.29(b),
including any items required to be included in any Exchange Act report;
or
(iv)
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 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 the Holders of
more
than 50% of the Aggregate Voting Interests of the Certificates or by any NIMS
Insurer; or
129
(v)
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
(vi)
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
(vii)
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
(viii)
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
(ix)
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 more than 50% of the Aggregate Voting Interests of
the
Certificates or by any NIMS Insurer; or
(x)
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 more than 50% of the Aggregate
Voting Interests of the Certificates; or
(xi)
The
Master Servicer has notice or actual knowledge that the 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 the Servicer under
the
Servicing Agreement and replaced the Servicer with a Xxxxxx Mae- or Xxxxxxx
Mac-approved servicer within 60 days of the date the Master Servicer receives
such notice or acquires such actual knowledge; or
130
(xii)
After
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 Master Servicer Remittance Date which failure
continues unremedied for a period of one Business Day (but in no event later
than 12:00 p.m. New York City time on the related Distribution Date) after
the
date upon which notice of such failure shall have been given to the Master
Servicer by the Trustee.
If
an
Event of Default described in clauses (i) through (xii) of this Section 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 more
than 50% of the Class Principal Amount of each Class of Certificates, terminate
all of the rights and obligations of the Master Servicer hereunder and in and
to
the Mortgage Loans and the proceeds thereof. If an Event of Default described
in
clause (xii) of this Section 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 (xii) of this Section 6.14, the
Trustee, by notice in writing to the Master Servicer, shall promptly terminate
all of the rights and obligations of the Master Servicer hereunder and in and
to
the Mortgage Loans and the proceeds thereof. On or after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer, 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 Servicing obligations to the Trustee; provided,
further,
the
obligation to make Advances by the Trustee (as successor master servicer) shall
be effective upon the Trustee providing notice of termination to the Master
Servicer pursuant to this Section 6.14. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the defaulting Master Servicer
as
attorney-in-fact or otherwise, any and all documents and other instruments,
and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement or assignment of the Mortgage Loans and related documents or
otherwise. The defaulting Master Servicer agrees to cooperate with the Trustee
in effecting the termination of the defaulting Master Servicer’s
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying the Servicer of the assignment of the master servicing
function and providing the Trustee or its designee all documents and records
in
electronic or other form reasonably requested by it to enable the Trustee or
its
designee to assume the defaulting Master Servicer’s functions hereunder and the
transfer to the Trustee or its designee 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 employees and overhead,
legal fees and expenses, accounting and financial consulting fees and expenses,
and costs of amending the Agreement, if necessary.
131
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; and provided, further, that the Trustee shall decide
whether and to what extent it is in the best interest of the Certificateholders
to pursue any remedy against any party obligated to make such
reimbursement.
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 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, the Cap 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
to the Trustee on the Master Servicer Remittance Date.
(b) Within
90
days of the time the Master Servicer receives a notice of termination from
the
Trustee pursuant to Section 6.14(a) or the Trustee receives the resignation
of
the Master Servicer evidenced by an Opinion of Counsel pursuant to Section
9.28,
the Trustee, unless another master servicer shall have been appointed, shall
be
the successor in all respects to the Master Servicer in its capacity as such
under this Agreement and the transactions set forth or provided for herein
and
shall have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on the
Master Servicer hereunder, including the obligation to make Advances;
provided,
however,
that any
failure to perform such duties or responsibilities caused by the Master
Servicer’s failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall
have no responsibility for any act or omission of the Master Servicer prior
to
the issuance of any notice of termination and within a period of time not to
exceed 90 days after the issuance of written notice of termination pursuant
to
Section 6.14(a) or Section 9.28 or for any breach of representation or warranty
by such predecessor Master Servicer. 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.
132
(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, 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 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 the Master Servicer hereunder.
Such successor master servicer shall have no responsibility for any act or
omission of the Master Servicer prior to such successor’s assumption of the
Master Servicer’s rights and obligations hereunder and such successor master
servicer shall also have no liability relating to the representations and
warranties of the Master Servicer set forth in Section 9.14. Any entity
designated by the Trustee as a successor master servicer may be an Affiliate
of
the Trustee; provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer or the Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Trust Fund for such Affiliate’s actions and omissions in performing its
duties hereunder. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of
payments on Mortgage Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted to the Master Servicer
hereunder. The Trustee and such successor shall take such actions, consistent
with this Agreement, as shall be necessary to effectuate any such succession
and
may make other arrangements with respect to the servicing to be conducted
hereunder which are not inconsistent herewith. The Master Servicer shall
cooperate with the Trustee and any successor master servicer in effecting the
termination of the Master Servicer’s responsibilities and rights hereunder
including, without limitation, notifying Mortgagors of the assignment of the
master servicing functions and providing the Trustee and successor master
servicer, as applicable, all documents and records in electronic or other form
reasonably requested by it to enable it to assume the Master Servicer’s
functions hereunder and the transfer to the Trustee or such successor master
servicer, as applicable, all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or the Lower Tier
REMIC 1 Uncertificated Regular Interests or thereafter be received with respect
to the Mortgage Loans. Neither the Trustee nor any other successor master
servicer shall be deemed to be in default hereunder by reason of any failure
to
make, or any delay in making, any distribution hereunder or any portion thereof
caused by (i) the failure of the Master Servicer to deliver, or any delay in
delivering, cash, documents or records to it, (ii) the failure of the Master
Servicer to cooperate as required by this Agreement, (iii) the failure of the
Master Servicer to deliver the Mortgage Loan data to the Trustee as required
by
this Agreement or (iv) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer.
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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.
133
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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.
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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, any NIMS Insurer, the Swap
Counterparty and the Cap Counterparty. 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.
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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 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 acceptable to any NIMS
Insurer, 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.
134
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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, any NIMS Insurer,
the
Swap Counterparty and the Cap 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, the Swap Counterparty, the Cap Counterparty,
the
NIMS Insurer 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 Trustee’s
control 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 resulting from any error in any of such tax or information returns
directly resulting from errors in the information provided by such Master
Servicer.
(b) The
Trustee shall prepare and file with the Internal Revenue Service (“IRS”), on
behalf of the Trust Fund and each of the REMICs specified in the Preliminary
Statement, an application for an employer identification number on IRS Form
SS-4
or by any other acceptable method. The Trustee shall also file a Form 8811
as
required. The Trustee, upon receipt from the IRS of the Notice of Taxpayer
Identification Number Assigned for each REMIC, shall upon request promptly
forward a copy of such notice to the Master Servicer and the Depositor. The
Trustee shall have no obligation to verify the information in any Form 8811
or
Form SS-4 filing.
135
(c) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, within 10 days (or, if applicable, within such shorter
period of time as is required under the rules of the Commission as in effect
from time to time (the “Rules”)) following each Distribution Date, the Trustee
shall, in accordance with industry standards and the Rules, prepare and file
with the Commission via the Electronic Data Gathering and Retrieval System
(“XXXXX”) the reports listed in subsections (d) through (f) of this Section 6.20
in respect of the Trust Fund as and to the extent required under the Exchange
Act each of which reports and any amendment thereof shall be signed by the
Exchange Act Signing Party.
(d) Reports
Filed on Form 10-D.
(i)
Within
15
days following each Distribution Date (or such later date as may be permissible
due to an extension of the filing deadline under the Exchange Act), the Trustee
will prepare and file a distribution report on Form 10-D (a “Distribution
Report”) with respect to the Trust Fund, which Distribution Report shall include
(A) a copy of the Distribution Date Statement prepared by the Trustee in respect
of the related Distribution Date detailing all applicable data elements
specified in Item 1121(a) of Regulation AB other than those data elements
specified in Item 1121(a)(11), (12) and (14) and (B) the following additional
information, data and material required to be included in the Distribution
Report on Form 10-D for such Distribution Date; provided
that the
Trustee shall have received from the Depositor, the Sponsor, the Master
Servicer, the Servicer, any Custodian, the Credit Risk Manager, the Swap
Counterparty, the Cap Counterparty or any Subservicer or Subcontractor therefor
no later than three Business Days after the related Distribution Date such
following information, data and materials in a form suitable for conversion
to
the format required for filing with the Commission via XXXXX (i.e. not in
Adobe/.pdf form) required to be included in the Distribution Report on Form
10-D
for such Distribution Date:
(1) Item
1 -
Distribution and Pool Performance Information (each of the data elements
specified in Item 1121(a)(11), (12) and (14) of Regulation AB);
(2) Item
2 -
Legal Proceedings (information required by Item 1117 of Regulation
AB);
(3) Item
3 -
Sale of Securities and Use of Proceeds (information required by Item 2 of Part
II of Form 10-Q);
(4) Item
4 -
Defaults Upon Senior Securities (information required by Item 3 of Part II
of
Form 10-Q);
(5) Item
5 -
Submission of Matters to a Vote of Security Holders (information required by
Item 4 of Part II of Form 10-Q);
(6) Item
6 -
Significant Obligors of Pool Assets (information required by Item 1112(b) of
Regulation AB);
(7) Item
7 -
Significant Enhancement Provider Information (information required by Items
1114(b)(2) and 1115(b) of Regulation AB);
136
(8) Item
8 -
Other Information (all other information required to be disclosed on Form 8-K
during the period covered by the report and not yet reported); and
(9) Item
9 -
Exhibits (all exhibits required to be filed by Form 10-D and Item 601 of
Regulation S-K other than the Distribution Date Statement to be provided by
the
Trustee).
(ii)
After
preparing the Form 10-D, the Trustee shall forward electronically a draft copy
of the Form 10-D to the Exchange
Act Signing Party for review and approval. If the Master Servicer is the
Exchange Act Signing Party and the Form 10-D includes Additional Form 10-D
Disclosure, then the Form 10-D shall also be electronically distributed to
the
Depositor for review and approval. No later than two Business Days prior to
the
15th calendar day after the related Distribution Date, a duly authorized
representative of the Exchange Act Signing Party shall sign the Form 10-D and
return an electronic or fax copy of such signed Form 10-D (with an original
executed hard copy to follow by overnight mail) to the Trustee.
If a
Form 10-D cannot be filed on time or if a previously filed Form 10-D needs
to be
amended, the Trustee will follow the procedures set forth in subsection (g)(ii)
of this Section 6.20. Promptly (but no later than one Business Day) after filing
with the Commission, the Trustee will make available on its internet website
a
final executed copy of each Form 10-D filed by the Trustee. Each party to this
Agreement acknowledges that the performance by the Trustee of its duties under
this Section 6.20(d) related to the timely preparation and filing of Form 10-D
is contingent upon such parties strictly observing all applicable deadlines
in
the performance of their duties under this Section 6.20(d). The Trustee shall
have no liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare and/or timely file such Form 10-D,
where such failure results from the Trustee’s inability or failure to obtain or
receive, on a timely basis, any information from any other party hereto needed
to prepare or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct. The Trustee shall not be responsible (1) for the
content of any of the information provided pursuant to clauses (d)(i)(1) -
(9)
above (unless such item is provided by and specific to the Trustee, in which
case the Trustee will be responsible for the content of such information;
provided
that
such
information is not revised without the prior consent of the Trustee), (2) for
determining whether any such information is required to be included in any
Form
10-D (unless such item is provided by and specific to the Trustee, in which
case
the Trustee will be responsible for such determination), (3) for reformatting
any information that is not in a form suitable for conversion to the format
required for filing with the Commission via XXXXX (such as information that
is
provided only in Adobe/.pdf form) or (4) for the failure to include any
information if it is not provided to the Trustee on a timely basis (unless
such
item is specific to the Trustee, in which case the Trustee will be responsible
for the failure to include such information, unless such information is not
included in the final Form 10-D without the consent of the
Trustee).
137
(e) Reports
Filed on Form 10-K.
(i)
On
or
prior to the 90th
day
after the end of each fiscal year of the Trust Fund or such earlier date as
may
be required by the Exchange Act (the “10-K Filing Deadline”) (it being
understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2008, and, unless and until a Form 15 Suspension
Notification shall have been filed, the Trustee shall prepare and file (but
will
not execute) a Form 10-K in respect of the Trust Fund, which shall include
the
certification required pursuant to Rule 13a-14 under the Exchange Act (the
“Form
10-K Certification”) signed by an appropriate party or parties (which Form 10-K
Certification the Trustee shall not be required to prepare or sign) and such
other information as is required by the Rules; provided
that the
Trustee shall have received from the Depositor, the Servicer, the Custodian,
each Additional Servicer, the Credit Risk Manager, any Servicing Function
Participant, the Paying Agent (if other than the Trustee) and the Master
Servicer (each, a “Reporting Servicer”), no later than March 15 of each calendar
year prior to the filing deadline for such Annual Report, all information,
data,
assessments of compliance, accountant’s attestations and exhibits required to be
provided or filed with such Annual Report including information, data,
assessments of compliance, accountant’s attestations and exhibits required to be
provided in connection with the following Items and other filing requirements
of
Form 10-K:
(A) Item
9B -
Other Information (information required to be reported on Form 8-K in the fourth
quarter but not reported);
(B) Item
15 -
Exhibits and Financial Statement Schedules (including all exhibits required
to
be filed pursuant to Item 601 of Regulation S-K under the Exchange Act other
than the certification specified in Item 601(b)(31)(ii) of Regulation S-K and
the Assessment of Compliance, Attestation Report, and Compliance Statement
specified in Item 601(b)(33), (34) and (35) of Regulation S-K with respect
to
those Servicing Criteria as to which the Trustee is the Item 1122 Responsible
Party);
(C) Significant
Obligor Financial Information (Item 1112(b) of Regulation AB);
(D) Significant
Enhancement Provider Financial Information (Items 1114(b)(2) and 1115(b) of
Regulation AB);
(E) Legal
Proceedings (Item 1117 of Regulation AB);
(F) Affiliations
and Certain Relationships and Related; Transactions (Item 1119 of Regulation
AB);
(G) Compliance
with Relevant Servicing Criteria (Item 1122 of Regulation AB); and
(H) Servicer
Compliance Statement (Item 1123 of Regulation AB).
138
(ii)
After
preparing the Form 10-K, the Trustee shall forward electronically a draft copy
of the Form 10-K to the Exchange Act Signing Party for review and approval.
If
the Master Servicer is the Exchange Act Signing Party and the Form 10-K includes
Additional Form 10-K Disclosure, then the Form 10-K shall also be electronically
distributed to the Depositor for review and approval. No later than the close
of
business New York City time on the fourth Business Day prior to the 10-K Filing
Deadline, a senior officer of the Exchange Act Signing Party shall sign the
Form
10-K and return an electronic or fax copy of such signed Form 10-K (with an
original executed hard copy to follow by overnight mail) to the Trustee. If
a
Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be
amended, the Trustee will follow the procedures set forth in subsection (g)
of
this Section 6.20. Promptly (but no later than one Business Day) after filing
with the Commission, the Trustee will make available on its internet website
a
final executed copy of each Form 10-K filed by the Trustee. The parties to
this
Agreement acknowledge that the performance by the Trustee of its duties under
this Section 6.20(e) related to the timely preparation and filing of Form 10-K
is contingent upon such parties (and any Additional Servicer or Servicing
Function Participant) strictly observing all applicable deadlines in the
performance of their duties under this Section 6.20(e), Section 9.25(a), Section
9.25(b) and Section 9.26. The Trustee shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 10-K, where such failure results from
the
Trustee’s inability or failure to obtain or receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 10-K, not resulting from its own negligence, bad faith or
willful misconduct. The Trustee shall not be responsible (1) for the content
of
any of the information provided pursuant to clauses (e)(i)(A) - (H) above
(unless such item is provided by and specific to the Trustee or its
Subcontractor, in which case the Trustee will be responsible for the content
of
such information; provided
that
such
information is not revised without the prior consent of the Trustee), (2) for
determining whether any such information is required to be included in any
Form
10-K (unless such information is specific to the Trustee, in which case the
Trustee shall be responsible for making such a determination), (3) for
reformatting any information that is not in a form suitable for conversion
to
the format required for filing with the Commission via XXXXX (such as
information that is provided only in Adobe/.pdf form) or (4) for the failure
to
include any information if it is not provided to the Trustee on a timely basis
(unless such item is specific to the Trustee, in which case the Trustee will
be
responsible for the failure to include such information, unless such information
is not included in the final Form 10-K without the consent of the
Trustee).
(iii)
Unless
a
Form 15 Suspension Notification with respect to the Trust Fund has been filed,
if so requested, on or prior to March 15th
of each
year, beginning in March 2008, the Trustee shall sign a certification in the
form attached hereto as Exhibit Q (the “Back-up Certification”) for the benefit
of the Exchange Act Signing Party and the Person who signs the Form 10-K
Certification (the “Certifying Party”) regarding certain aspects of such Form
10-K Certification, upon which the Exchange Act Signing Party and the Certifying
Party can reasonably rely (provided,
however,
that the
Trustee shall not be required to undertake an analysis of, and shall have no
responsibility for, any financial information, the accountant’s report,
certification or other materials contained therein, except for those
computations prepared by the Trustee and reflected in the distribution report).
Nothing in this Section 6.20(e)(iii) shall relieve the Trustee of its
responsibility for the matters as to which it is certifying in the form attached
hereto as Exhibit Q.
139
(iv)
Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Fund for
any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal of
such
Person.
(f) Reports
Filed on Form 8-K.
(i)
Within
four Business Days after the occurrence of an event requiring disclosure on
Form
8-K (each such event, a “Reportable Event”), at the written direction and
expense of the Depositor, the Trustee shall prepare and file Current Reports
on
Form 8-K in respect of the Trust Fund, as required by the Exchange Act;
provided
that the
Depositor shall have timely notified the Trustee of an item reportable on a
Current Report on Form 8-K and shall have delivered to the Trustee no later
than
two Business Days prior to the filing deadline for such Current Report, all
information, data, and exhibits required to be provided or filed with such
Current Report (“Form 8-K Disclosure Information”), including, particularly,
information, data and exhibits, in a form suitable for conversion to the format
required for filing with the Commission via XXXXX (i.e. not in Adobe/.pdf form),
required to be provided in connection with the following Items of Form
8-K:
(A) Item
1.01
- Entry into a Material Definitive Agreement;
(B) Item
1.02
- Termination of a Material Definitive Agreement;
(C) Item
1.03
- Bankruptcy or Receivership;
(D) Item
2.04
- Triggering Events that Accelerate or Increase a Direct Financial Obligation
or
an Obligation under an Off-Balance Sheet Arrangement;
(E) Item
3.03
- Material Modification to Rights of Security Holders;
(F) Item
5.03
- Amendments of Articles of Incorporation or Bylaws; Change of Fiscal
Year;
(G) Item
6.02
- Change in Servicer or Trustee;
(H) Item
6.03
- Change in Credit Enhancement or Other External Support;
(I) Item
6.04
- Failure to Make a Required Distribution;
140
(J) Item
6.05
- Securities Act Updating Disclosure;
(K) Item
7.01
- Reg FD Disclosure;
(L) Item
8.01
- Other Events; and
(M) Item
9.01
- Financial Statements and Exhibits.
(ii)
After
preparing the Form 8-K, the Trustee shall forward electronically, no later
than
Noon New York City time on the third Business Day after the Reportable Event,
a
draft copy of the Form 8-K to the Exchange Act Signing Party for review and
approval. If the Master Servicer is the Exchange Act Signing Party, then the
Form 8-K shall also be electronically distributed to the Depositor for review
and approval. No later than 1:00 p.m. New York City time on the fourth Business
Day after the Reportable Event, a duly authorized 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 (g) of this Section 6.20. Promptly (but no later than one
Business Day) after filing with the Commission, the Trustee will make available
on its internet website a final executed copy of each Form 8-K. The parties
to
this Agreement acknowledge that the performance by the Trustee of its duties
under this Section 6.20(f) related to the timely preparation and filing of
Form
8-K is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties under this Section 6.20(f). The Trustee
shall
have no liability for any loss, expense, damage 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 or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct. The Trustee shall not be responsible (1) for the
content of any of the information provided pursuant to clauses (f)(i)(A) -
(J)
above (unless such item is provided by and specific to the Trustee or its
Subcontractor, in which case the Trustee will be responsible for the content
of
such information; provided
that
such information is not revised without the prior consent of the Trustee),
(2)
for determining what information is required to be filed on a Form 8-K in
connection with the transactions contemplated by this Agreement (unless such
information is specific to the Trustee, in which case the Trustee will be
responsible for making such a determination, unless such information is not
included in the final Form 8-K without the consent of the Trustee), (3) for
reformatting any information that is not in a form suitable for conversion
to
the format required for filing with the Commission via XXXXX (such as
information that is provided only in Adobe/.pdf form) or (4) for any late filing
of a Form 8-K in the event that it does not receive all information, data,
signatures and exhibits required to be provided or filed on or prior to the
second Business Day prior to the applicable filing deadline.
141
(g) 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 in writing, the
Trustee shall prepare and file a Form 15 relating to the automatic suspension
of
reporting in respect of the Trust Fund under the Exchange Act. The Paying Agent
(if other than the Trustee) is entitled to assume that a Form 15 will be filed
for such year unless the Trustee notifies the Paying Agent that a Form 15 will
not be filed.
(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 Form 10-D/A and Form 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 any applicable party affected thereby
and such parties will cooperate to prepare any necessary Form 8-K/A, 10-D/A
or
10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K
shall be signed by a senior officer or a duly authorized representative, as
applicable, of the Exchange Act Signing Party. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
6.20(g) related to the timely preparation and filing of Form 15, a Form 12b-25
or any amendment to Form 8-K, 10-D or 10-K is contingent upon each such party
performing its duties under this Section. The Trustee shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file any such Form 15, Form 12b-25
or
any amendments to Forms 8-K, 10-D or 10-K, where such failure results from
the
Trustee’s inability or failure to obtain or receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K,
not resulting from its own negligence, bad faith or willful
misconduct.
(h) The
Trustee, with the prior consent of the Depositor, may include in any Exchange
Act report all relevant information, data, and exhibits as the Trustee may
receive in connection with such report irrespective of any provision that may
permit the exclusion of such material. For example, the Trustee, with the prior
consent of the Depositor, may file all Assessments of Compliance, Attestation
Reports and Compliance Statements timely received from any Item 1122 Responsible
Party irrespective of any applicable minimum pool asset percentage requirement
for disclosure related to such Item 1122 Responsible Party.
(i) Any
party
that signs any Exchange Act report that the Trustee is required to file shall
provide to the Trustee prompt notice of the execution of such Exchange Act
report along with the name and contact information for the person signing such
report and shall promptly deliver to the Trustee the original executed signature
page for such report. In addition, each of the parties agrees to provide to
the
Trustee such additional information related to such party as the Trustee may
reasonably request, including evidence of the authorization of the person
signing any certification or statement, financial information and reports,
and
such other information related to such party or its performance hereunder.
142
(j) The
Depositor and the Master Servicer, by mutual agreement, shall determine which
of
the Depositor or the Master Servicer shall be the initial Exchange Act Signing
Party. Upon such determination, the Depositor shall timely notify the Trustee,
and such notice shall provide contact information for the Exchange Act Signing
Party. If the Depositor and Master Servicer, at any time, mutually agree to
change the identity of the Exchange Act Signing Party, the Depositor shall
provide timely notice to the Trustee of any such change. Any notice delivered
pursuant to this Section 6.20 may be by fax or electronic copy notwithstanding
the notice provisions of Section 11.07.
|
Section
6.21
|
Reporting
Requirements of the Commission.
|
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01
and
6.20 of this Agreement is to facilitate compliance by the Sponsor, the Master
Servicer, the Depositor and the Trustee with the provisions of Regulation AB,
as
such may be amended or clarified from time to time. Therefore, each of the
parties agrees that (a) the obligations of the parties hereunder shall be
interpreted in such a manner as to accomplish compliance with Regulation AB,
(b)
the parties’ obligations hereunder will be supplemented and modified as
necessary to be consistent with any such amendments, interpretive advice or
guidance from the Commission, convention or consensus among active participants
in the asset-backed securities markets, or otherwise in respect of the
requirements of Regulation AB and (c) the parties shall comply with reasonable
requests made by the Sponsor, the Master Servicer, the Depositor or the Trustee
for delivery of additional or different information, to the extent such
information is available or reasonably attainable, as the Sponsor, the Master
Servicer, the Depositor or the Trustee may determine in good faith is necessary
to comply with the provisions of Regulation AB.
|
Section
6.22
|
No
Merger.
|
The
Trustee shall not cause or otherwise knowingly permit the assets of the Trust
Fund to be merged or consolidated with any other entity, except as a result
of a
final judicial determination.
143
ARTICLE
VII
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
|
Section
7.01
|
Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation
of All Mortgage Loans;
Purchase of Lower Tier REMIC 1 Uncertificated Regular
Interests.
|
(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, 9.14 and 9.31) 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 (each, a “Trust Fund Termination
Event”); provided,
however,
that in
no event shall the Trust Fund created hereby continue beyond the expiration
of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James’s,
living on the date hereof. Upon the occurrence of a Trust Fund Termination
Event, each REMIC shall be terminated in a manner that shall qualify as a
“qualified liquidation” under the REMIC Provisions.
(b) On
any
Distribution Date occurring on or after the Initial Optional Termination Date,
the Master Servicer or LTURI-holder, as applicable, with the prior written
consent of any NIMS Insurer and the Seller, which consent shall not be
unreasonably withheld, has the option to cause the Trust Fund to adopt a plan
of
complete liquidation pursuant to Section 7.03(a)(i) hereof to sell all of its
property (each such option, a “Call Option”); provided,
however,
that
any purchase of the Trust Fund’s property on or before the Distribution Date
that is one year after the Initial Optional Termination Date shall be made
by
the Bid Holder pursuant to Section 7.01(d) below. Upon exercise of such option,
the property of the Trust Fund shall be sold to the Master Servicer at a price
(the “Termination Price”) equal to the sum of (i) 100% of the unpaid principal
balance of each Mortgage Loan on the day of such purchase plus interest accrued
thereon at the applicable Mortgage Rate with respect to any Mortgage Loan to
the
Due Date in the Collection Period immediately preceding the related Distribution
Date to the date of such repurchase, (ii) the fair market value of any REO
Property and any other property held by any REMIC, 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 (iv) any Swap Termination Payment payable
to
the Swap Counterparty 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 Termination Price shall also
include an amount equal to the sum of (1) any accrued interest on the NIM
Securities, (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”). The Master Servicer, the Servicer, the Trustee and the
Custodian shall be reimbursed from the Termination 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 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 Servicer or the Custodian. If the
Master Servicer fails to exercise such option, the NIMS Insurer will have the
right to cause the Master Servicer to exercise such option, to the extent
provided in the insurance agreement related to the NIM Securities among the
Master Servicer, the Trustee and the NIMS Insurer, so long as such NIMS Insurer
is insuring the NIM Securities or is owed any amounts in connection with such
guaranty of the NIM Securities. If the NIMS Insurer directs the Master Servicer
to exercise its right to cause the Trust Fund to adopt a plan of complete
liquidation as described above, then (i) the Master Servicer shall cause the
Trust Fund to adopt a plan of complete liquidation as described above, (ii)
the
NIMS Insurer shall remit the Termination 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
and
(iii) upon termination of the Trust Fund, the Trustee will transfer the property
of the Trust Fund to the NIMS Insurer. The NIMS Insurer shall be obligated
to
reimburse the Master Servicer and the Trustee for its reasonable out-of-pocket
expenses incurred in connection with its termination of the Trust Fund 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 relating to the Master Servicer’s termination of
the Trust Fund 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 negligence, bad faith or willful misconduct.
144
(c) On
any
Distribution Date occurring on or after the Initial Optional Termination Date
and provided there are no NIM Securities outstanding, the Master Servicer,
with
the prior written consent of the Seller, which consent shall not be unreasonably
withheld, has the option (the “Regular Interest Purchase Option”) to purchase
all of the Lower Tier REMIC 1 Uncertificated Regular Interests. Upon exercise
of
such option, the Lower Tier REMIC 1 Uncertificated Regular Interests shall
be
sold to the Master Servicer at a price (the “Lower Tier REMIC 1 Uncertificated
Regular Interests Purchase Price”) equal to the sum of (i) 100% of the unpaid
principal balance of each Mortgage Loan on the day of such purchase plus
interest accrued thereon at the applicable Mortgage Rate with respect to any
Mortgage Loan to the Due Date in the Collection Period immediately preceding
the
related Distribution Date to the date of such repurchase and (ii) the fair
market value of any REO Property and any other property held by any REMIC,
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). If the Master Servicer elects to exercise such option, each REMIC
created pursuant to this Agreement (other than REMIC 1) shall be terminated
in
such a manner so that the termination of each such REMIC shall qualify as a
“qualified liquidation” under the REMIC Provisions and the Lower Tier REMIC 1
Uncertificated Regular Interests and the Class LT-R Certificates will evidence
the entire beneficial interest in the property of the Trust Fund. Following
a
purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests pursuant
to
this subsection, the Trust Fund (and REMIC 1) will remain outstanding and final
payment on the Certificates (other than the Class LT-R Certificates) will be
made in accordance with Sections 7.03(a)(iii) and 5.02. The Trust Fund will
terminate upon the occurrence of a Trust Fund Termination Event, in accordance
with Section 7.01(a).
145
(d) (i)
Prior
to exercising the Call Option pursuant to Section 7.01(b) or the Regular
Interests Purchase Option pursuant to Section 7.01(c), the Master Servicer
shall
on the first Business Day of the month of the occurrence of the Initial Optional
Termination Date, and for so long as the Master Servicer shall not have
exercised the Call Option or the Regular Interests Purchase Option, on the
first
Business Day of each succeeding month (each, a “Bid Month”), the Master Servicer
shall give written notice in the form attached hereto as Exhibit Y (the “Call
Option Notice”) to each Call Option Holder.
(ii)
Not
later
than three (3) Business Days prior to the related Bid Due Date, the Master
Servicer shall give written notice to each Call Option Holder of the Termination
Price for the related Distribution Date.
(iii)
Not
later
than the 15th day (or if such date is not a Business Day, the immediately
succeeding Business Day) of each Bid Month (the “Bid Due Date”), if any Call
Option Holder desires that the Master Servicer exercise the option to purchase
the Mortgage Loans and certain other property of the Trust Fund, such Call
Option Holder shall give written notice in the form attached hereto as Exhibit
Z
(the “Purchaser Call Option Notice”) to the Master Servicer, requesting that the
Master Servicer exercise such option on behalf of such Call Option Holder.
The
Purchaser Call Option Notice shall include the amount to be paid by a Call
Option Holder with respect to the proceeds or assets to be received by the
Master Servicer for the Mortgage Loans and certain other property of the Trust
Fund (the “Bid Price”); provided,
that
the Bid Price must be equal to or greater than the Termination
Price.
(iv)
One
(1)
Business Day after the related Bid Due Date, the Master Servicer shall notify
the Call Option Holder, if any, that has submitted the highest Bid Price (the
“Bid Holder”) that such Bid Holder has the right to direct the Master Servicer
to exercise the option to purchase the Mortgage Loans and certain other property
of the Trust Fund. The Master Servicer shall thereafter notify any Call Option
Holder that did not submit the highest Bid Price (or did not submit a Purchaser
Call Option Notice) of the amount of the highest Bid Price. If two or more
Call
Option Holder shall have bid the same Bid Price, the Bid Holder shall be the
Call Option Holder with the greater Percentage Interest in the NIM Residual
Securities or Class X Certificates, as applicable. If the Master Servicer does
not receive any Purchaser Call Option Notices by such Bid Due Date, or if no
Purchaser Call Option Notice specifies a Bid Price equal to or greater than
the
Termination Price, then the Master Servicer shall not exercise the option to
purchase the Mortgage Loans and certain other property of the Trust Fund on
such
Distribution Date (other than in accordance with clause (vii)
below).
146
(v)
Not
later
than three (3) Business Days immediately preceding the Distribution Date in
the
related Bid Month, the Bid Holder shall remit the Bid Price as specified in
the
Purchaser Call Option Notice to the Master Servicer, in immediately available
funds. Upon receipt of such funds from the Bid Holder, the Master Servicer
shall
promptly deposit the Termination Price in the Collection Account for subsequent
deposit in the Certificate Account in accordance with this Agreement. Any
amounts received by the Master Servicer from the Bid Holder in excess of the
Termination Price shall be remitted to the Trustee for distribution to the
Call
Option Holders. In no event shall any such excess be treated as being paid
by
any REMIC created hereby.
(vi)
If
the
Bid Holder directs the Master Servicer to exercise the option to purchase the
Mortgage Loans and certain other property of the Trust Fund, then the Master
Servicer shall (i) cause the Trust Fund to adopt a plan of complete liquidation
pursuant to Section 7.03(a)(i) hereof to sell all of its property and (ii)
instruct the Trustee upon termination of the Trust Fund to transfer the property
of the Trust Fund to the Bid Holder. The Bid Holder shall be obligated to
reimburse the Master Servicer for its reasonable out-of-pocket expenses incurred
in connection with its exercise of the option to purchase the Mortgage Loans
and
certain other property of the Trust Fund and to indemnify and hold harmless
the
Master Servicer for any losses, liabilities or expenses resulting from any
claims directly resulting from or relating to the Master Servicer’s exercise of
such option, except to the extent such losses, liabilities or expenses arise
out
of or result from the Master Servicer’s negligence, bad faith or willful
misconduct. The terms of such expense reimbursement and the extent of such
indemnity may be amended accordant to an agreement between the Master Servicer
and the Bid Holder.
(vii)
Commencing
on the Distribution Date of the one year anniversary of the Initial Optional
Termination Date, and on each Distribution Date thereafter, the Master Servicer
shall have the right to exercise the Call Option or the Regular Interests
Purchase Option. If the Master Servicer desires to exercise the Call Option
or
the Regular Interests Purchase Option, the Master Servicer shall notify the
Call
Option Holders pursuant to a Call Option Notice that it desires to exercise
such
Call Option or such Regular Interest Purchase Option, as applicable, on the
immediately succeeding Distribution Date. If one or more Call Option Holders
submit a Purchaser Call Option Notice on or before the immediately succeeding
Bid Due Date, then, the Master Servicer shall follow the procedures set forth
in
clauses (iv) through (vi) above. However, if no Call Option Holder submits
a
Purchaser Call Option Notice on or before the immediately succeeding Bid Due
Date, then, on the immediately succeeding Distribution Date, the Master Servicer
may exercise the its right to purchase the Mortgage Loans and other property
of
the Trust Fund pursuant to Section 7.01(b) or the Lower Tier REMIC 1
Uncertificated Regular Interests pursuant to Section 7.01(c).
|
Section
7.02
|
Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC 1
Uncertificated Regular
Interests.
|
(a) Notice
of
any Trust Fund Termination Event and notice of the purchase of the Lower Tier
REMIC 1 Uncertificated Regular Interests, specifying the Distribution Date
upon
which the final distribution to the Certificates (other than the Class LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests) shall be made, shall be given by the Trustee by first class
mail to Certificateholders mailed promptly (and in no event later than five
Business Days) (x) after the Trustee has received notice from the Master
Servicer or the LTURI-holder, as applicable, of its election to cause (1) the
sale of all of the property of the Trust Fund pursuant to Section 7.01(b) or
(2)
the purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests pursuant
to Section 7.01(c), or (y) upon the final payment or other liquidation of the
last Mortgage Loan or REO Property in the Trust Fund. In the case of a Trust
Fund Termination Event, the Trustee shall also give notice to the Master
Servicer, the Swap Counterparty, the Cap Counterparty and the Certificate
Registrar at the time notice is given to Holders.
147
In
the
case of a Trust Fund Termination Event, such notice shall specify (A) the
Distribution
Date
upon which final distribution on the Certificates or Lower Tier REMIC 1
Uncertificated Regular Interests of all amounts required to be distributed
to
Certificateholders pursuant to Section 5.02 will be made upon presentation
and
surrender of the Certificates at the Corporate Trust Office, and (B) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Certificates
at the office or agency of the Trustee therein specified. Upon any such Trust
Fund Termination Event, the duties of the Certificate Registrar with respect
to
the Certificates or Lower Tier REMIC 1 Uncertificated Regular Interests shall
terminate and the Trustee shall terminate or request the Master Servicer to
terminate, the Collection Account it maintains, the Certificate Account and
any
other account or fund maintained with respect to the Certificates or Lower
Tier
REMIC 1 Uncertificated Regular Interests, subject to the Trustee’s obligation
hereunder to hold all amounts payable to Certificateholders in trust without
interest pending such payment.
In
the
case of a purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests,
such notice shall specify (A) the Distribution Date upon which final
distribution on the Certificates (other than the Class LT-R Certificates) of
all
amounts required to be distributed to Certificateholders pursuant to Section
5.02 (other than any distributions to the Class LT-R Certificates in respect
of
REMIC 1) will be made upon presentation and surrender of the Certificates (other
than the Class LT-R Certificates) at the Corporate Trust Office, and (B) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, distribution being made only upon presentation and surrender of
the
Certificates (other than the Class LT-R Certificates) at the office or agency
of
the Trustee therein specified. Upon any such purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests, the duties of the Certificate Registrar with
respect to the Certificates other than the Class LT-R Certificate shall
terminate but the Trustee shall not terminate or request the Master Servicer
to
terminate, the Collection Account it maintains, the Certificate Account and
any
other account or fund maintained with respect to the Certificates, subject
to
the Trustee’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment. For all
Distribution Dates following the Distribution Date on which the Master Servicer
purchases the Lower Tier REMIC 1 Uncertificated Regular Interests, all amounts
that would be distributed on the Certificates (other than the Class LT-R
Certificate and exclusive of amounts payable from any fund held outside of
REMIC
1) absent such purchase shall be payable to the LTURI-holder.
148
(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 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 Trust Fund
Termination Event or any purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests shall be reimbursed from proceeds received from such
termination or purchase.
|
Section
7.03
|
Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC
1
Uncertificated Regular
Interests.
|
(a) Any
termination of the Trust Fund pursuant to Section 7.01(a) or any termination
of
a REMIC pursuant to Section 7.01(c) shall be effected in accordance with the
following additional requirements, unless the Trustee seeks (at the request
of
the party exercising the option to purchase all of the Mortgage Loans or Lower
Tier REMIC 1 Uncertificated Regular Interests pursuant to Section 7.01(b) or
Section 7.01(c), respectively), and subsequently receives, an Opinion of Counsel
(at the expense of such requesting party), addressed to the Trustee and any
NIMS
Insurer to the effect that the failure to comply with the requirements of this
Section 7.03 will not result in an Adverse REMIC Event:
(i)
Within
89
days prior to the time of the making of the final payment on the Certificates
(other than the Class LT-R Certificates, in the case of a purchase of the Lower
Tier REMIC 1 Uncertificated Regular Interests, upon notification by the Master
Servicer, any NIMS Insurer or an Affiliate of the Seller that it intends to
exercise its option to cause the termination of the Trust Fund or purchase
the
Lower Tier REMIC 1 Uncertificated Regular Interests, the Trustee shall adopt
a
plan of complete liquidation on behalf of each REMIC (other than REMIC 1, in
the
case of a purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests),
meeting the requirements of a qualified liquidation under the REMIC
Provisions;
(ii)
Any
sale
of the assets of the Trust Fund or the Lower Tier REMIC 1 Uncertificated Regular
Interests pursuant to Section 7.02 shall be a sale for cash and shall occur
at
or after the time of adoption of such a plan of complete liquidation and prior
to the time of making of the final payment on the Certificates (other than
the
Class LT-R Certificates, in the case of a purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests);
149
(iii)
On
the
date specified for final payment of the Certificates (other than the Class
LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests), the Trustee shall make final distributions of principal
and
interest on such Certificates and shall pay, in the case of a Trust Fund
Termination Event, any Net Swap Payment owed to the Swap Counterparty then
remaining unpaid and 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 5.01 and Section 5.02. In the case
of
a Trust Fund Termination Event, and, after payment of, or provision for any
outstanding expenses, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Residual Certificates all cash
on
hand after such final payment (other than cash retained to meet claims), and
the
Trust Fund (and each REMIC) shall terminate at that time; and
(iv)
In
no
event may the final payment on the Certificates or the final distribution or
credit to the Holders of the Residual Certificates in respect of the residual
interest in any liquidated REMIC be made after the 89th day from the date on
which the plan of complete liquidation for such REMIC is adopted.
(b) By
its
acceptance of a Residual Certificate, each Holder thereof hereby agrees to
accept the plan of complete liquidation prepared by the Depositor and adopted
by
the Trustee under this Section and to take such other action in connection
therewith as may be reasonably requested by the Master Servicer or the
Servicer.
(c) In
connection with the termination of the Trust Fund, or a Section 7.01(c) Purchase
Event, the Trustee may request an Opinion of Counsel addressed to the Trustee
(at the expense of the Depositor) to the effect that all the requirements of
a
qualified liquidation under the REMIC Provisions have been met.
|
Section
7.04
|
Optional
Repurchase Right.
|
The
NIMS
Insurer, if any, may repurchase 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 or Servicing Fees allocable to such Distressed
Mortgage Loan. Any such repurchase shall be accomplished by the NIMS Insurer’s
remittance of the purchase price for the Distressed Mortgage Loan to the Master
Servicer for deposit into the Collection Account. The NIMS Insurer shall not
use
any procedure in selecting Distressed Mortgage Loans to be repurchased which
would be materially adverse to Certificateholders.
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.
150
(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 Percentage
Interest) of Certificates of each Class affected thereby shall, with the prior
written consent of any NIMS Insurer, 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 the Trustee during such sixty-day period by such
Certificateholders or any NIMS Insurer; it being understood and intended, and
being expressly covenanted by each Certificateholder with every other
Certificateholder, any NIMS Insurer 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 the rights of any
NIMS Insurer, or to obtain or seek to obtain priority over or preference to
any
other such Holder or any NIMS Insurer, 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, the NIMS Insurer 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 and any NIMS Insurer, within
fifteen days after receipt by the Certificate Registrar of a request by the
Trustee or any NIMS Insurer 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
any
NIMS Insurer or 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.
151
(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,
any
NIMS Insurer, the Certificate Registrar and the Trustee that none of the
Depositor, the Master Servicer, any NIMS Insurer, 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 others of receipt of any such instrument
by
it, and shall promptly forward a copy of such instrument to the
others.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
or
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by an
officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the individual executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The
ownership of Certificates or Lower Tier REMIC 1 Uncertificated Regular Interests
(whether or not such Certificates or Lower Tier REMIC 1 Uncertificated Regular
Interests shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by anyone other than the Trustee) shall be proved
by
the Certificate Register, and none of the Trustee, the Master Servicer, the
Paying Agent, the NIMS Insurer, or the Depositor shall be affected by any notice
to the contrary.
152
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Certificate or Lower Tier REMIC 1 Uncertificated
Regular Interest shall bind every future Holder of the same Certificate or
Lower
Tier REMIC 1 Uncertificated Regular Interest and the Holder of every Certificate
or Lower Tier REMIC 1 Uncertificated Regular Interest issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
in
respect of anything done, omitted or suffered to be done by the Trustee or
the
Master Servicer in reliance thereon, whether or not notation of such action
is
made upon such Certificate or Lower Tier REMIC 1 Uncertificated Regular
Interest.
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER; CREDIT RISK
MANAGER
|
Section
9.01
|
Duties
of the Master Servicer.
|
The
Certificateholders, by their purchase and acceptance of the Certificates or
Lower Tier REMIC 1 Uncertificated Regular Interests, appoint Aurora Loan
Services LLC, as Master Servicer. For and on behalf of the Depositor, the
Trustee and the Certificateholders, the Master Servicer shall master service
the
Mortgage Loans in accordance with the provisions of this Agreement and the
provisions of the Servicing Agreement. Notwithstanding anything in this
Agreement, the Servicing Agreement or the Credit Risk Management Agreement
to
the contrary, the Master Servicer shall have no duty or obligation to enforce
the Credit Risk Management Agreement or to supervise, monitor or oversee the
activities of the Servicer under the Credit Risk Management Agreement with
respect to any action taken or not taken by the Servicer at the direction of
the
Seller or pursuant to a recommendation of the Credit Risk Manager.
|
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 be consistent with
coverage customarily maintained by master servicers of mortgage loans similar
to
the Mortgage Loans and the Master Servicer shall provide the Trustee and any
NIMS Insurer upon request, with a copy of such policy and fidelity bond. The
Master Servicer shall (i) require the Servicer to maintain an Errors and
Omissions Insurance Policy and a Servicer Fidelity Bond in accordance with
the
provisions of the Servicing Agreement, (ii) cause the Servicer to provide to
the
Master Servicer certificates evidencing that such policy and bond is in effect
and to furnish to the Master Servicer any notice of cancellation, non-renewal
or
modification of the policy or bond received by it, as and to the extent provided
in the Servicing Agreement, and (iii) furnish copies of such policies and of
the
certificates and notices referred to in clause (ii) to the Trustee upon
request.
153
(b) The
Master Servicer shall promptly report to the Trustee and any NIMS Insurer 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 and any NIMS Insurer, 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 and any NIMS Insurer 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 and any NIMS Insurer. 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 the Servicer under any such bond or policy shall be remitted
to the Master Servicer to the extent provided in the 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, any NIMS Insurer, each Rating Agency and the Depositor a copy of the
annual audited financial statements of its corporate parent on or prior to
March
31st of each year commencing on 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 the Servicer shall have full power and authority (to
the
extent provided in the Servicing Agreement) to do any and all things that it
may
deem necessary or desirable in connection with the servicing and administration
of the Mortgage Loans, including but not limited to the power and authority
(i)
to execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement and the Servicing
Agreement, as applicable; provided that the Master Servicer shall not take,
or
knowingly permit the 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, the
Certificateholders under this Agreement. 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
the
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 the Servicer, and the Servicer, to the extent such authority is delegated
to
the Servicer under the Servicing Agreement, is hereby authorized and empowered
by the Trustee when the Master Servicer or the Servicer, as the case may be,
believes it appropriate in its best judgment and in accordance with Accepted
Servicing Practices and the Servicing Agreement, to execute and deliver, on
behalf of itself and the Certificateholders, the Trustee or any of them, any
and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall furnish
to
the Master Servicer, upon request, with any powers of attorney empowering the
Master Servicer or the Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
to
foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Mortgage Loans or the
Mortgaged Property, in accordance with the Servicing Agreement and this
Agreement, and the Trustee shall execute and deliver such other documents,
as
the Master Servicer may request, necessary or appropriate to enable the Master
Servicer to master service the Mortgage Loans and carry out its duties hereunder
and to allow the Servicer to service the Mortgage Loans, in each case in
accordance with Accepted Servicing Practices (and the Trustee shall have no
liability for misuse of any such powers of attorney by the Master Servicer
or
the 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 no event shall the Master Servicer, without the
Trustee’s written consent: (i) initiate any action, suit or proceeding solely
under the Trustee’s name without indicating the Master Servicer in its
applicable, representative capacity, (ii) initiate any action, suit or
proceeding not directly relating to the servicing of a Mortgage Loan (including
but not limited to actions, suits or proceedings against Certificateholders,
or
against the Depositor or the Transferor for breaches of representations and
warranties) solely under the Trustee’s name, (iii) engage counsel to represent
the Trustee in any action, suit or proceeding not directly relating to the
servicing of a Mortgage Loan (including but not limited to actions, suits or
proceedings against Certificateholders, or against the Depositor or the
Transferor for breaches of representations and warranties), or (iv) prepare,
execute or deliver any government filings, forms, permits, registrations or
other documents or take any action with the intent to cause, and that actually
causes, the Trustee to be registered to do business in any state. The Master
Servicer shall indemnify the Trustee for any and all costs, liabilities and
expenses incurred by the Trustee in connection with the negligent or willful
misuse of such powers of attorney by the Master Servicer. In the performance
of
its duties hereunder, the Master Servicer shall be an independent contractor
and
shall not, except in those instances where it is taking action in the name
of
the Trustee on behalf of the Trust Fund, be deemed to be the agent of the
Trustee.
154
(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall employ
procedures and exercise the same care that it customarily employs and exercises
in master servicing and administering loans for its own account, giving due
consideration to Accepted Servicing Practices where such practices do not
conflict with this Agreement. Consistent with the foregoing, the Master Servicer
may, and may permit 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. In the event of any such modification, the Master Servicer shall make
or
cause the Servicer (if required by the Servicing Agreement) to calculate the
Scheduled Payment for such Mortgage Loan based on the modified terms of the
Mortgage Loan and shall only be required to make Advances pursuant to Section
5.04 to the extent of the new Scheduled Payment. 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
Servicer, reasonably foreseeable, (2) in the case of a waiver of a Prepayment
Premium (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 refinance by the Servicer or any
of
its affiliates, (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.
155
(c) As
an
alternative to permitting a modification or effectuating a foreclosure or other
conversion of the ownership of a Mortgaged Property, the Master Servicer may,
at
its option, purchase any Mortgage Loan that has become one hundred and twenty
(120) days or more delinquent in payment (including, for the avoidance of doubt,
any Mortgage Loan with respect to which the related borrower is in Bankruptcy);
provided, however, that (i) the Master Servicer promptly notifies the Servicer
of its intention to purchase any such delinquent Mortgage Loan prior to its
purchase and (ii) that the Master Servicer shall exercise any such option to
purchase a Mortgage Loan within sixty (60) days after any such Mortgage Loan
has
become one hundred and twenty (120) days delinquent. The price at which the
Master Servicer shall purchase any such delinquent Mortgage Loan shall equal
the
Purchase Price and such amount shall be deposited into the Collection Account
on
the date of purchase pursuant to Section 4.01(d)(viii). Upon receipt by the
Trustee of a written certification from the Master Servicer that the Master
Servicer has exercised such option and deposited the full amount of the Purchase
Price of the related Mortgage Loan in the Collection Account and delivery of
a
Request for Release of Documents (on the form attached hereto as Exhibit C
or in
the form attached to the Custodial Agreement), the Custodian shall release
the
related Mortgage File to or upon the order of the Master Servicer, and at the
written requirement of the Master Servicer the Trustee shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be necessary to vest title to such Mortgage
Loan in the Master Servicer or its designee, which instruments shall be prepared
by the Master Servicer.
156
|
Section
9.05
|
Enforcement
of Servicer’s and Master Servicer’s Obligations.
|
(a) The
Servicing Agreement requires the 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 the Servicer on behalf of the Master Servicer. Any fees and other amounts
payable to the Servicer shall be deducted from amounts remitted to the Master
Servicer by the Servicer (to the extent permitted by the Servicing Agreement)
and shall not be an obligation of the Trust Fund, the Trustee or the Master
Servicer.
(b) The
Master Servicer shall not be required to (i) take any action with respect to
the
servicing of any Mortgage Loan that the Servicer is not required to take under
the Servicing Agreement or (ii) cause the Servicer to take any action or refrain
from taking any action if the Servicing Agreement does not require the Servicer
to take such action or refrain from taking such action; in both cases
notwithstanding any provision of this Agreement that requires the Master
Servicer to take such action or cause the Servicer to take such
action.
(c) The
Master Servicer, for the benefit of the Trustee, any NIMS Insurer and the
Certificateholders, shall enforce the obligations of the Servicer under the
Servicing Agreement, and shall, in the event that the Servicer fails to perform
its obligations in accordance therewith, terminate the rights and obligations
of
the Servicer thereunder and either act as servicer of the 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 the Servicing
Agreement and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer,
in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement
at
its own expense, and shall be reimbursed therefor initially (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 Servicer under the terms of the Servicing
Agreement or relating to Section 9.04(b) of this Agreement, in its preparation
of any certifications, 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 Servicing Agreement, the Master Servicer shall cause
the
Servicer to establish and maintain one or more custodial accounts at a
depository institution (which may be a depository institution with which the
Master Servicer or the Servicer establishes accounts in the ordinary course
of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an “Escrow Account”) and 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 Agreement.
The
Servicer shall be entitled to all investment income not required to be paid
to
Mortgagors on any Escrow Account maintained by the Servicer. The Master Servicer
shall make (or cause to be made) to the extent provided in the Servicing
Agreement advances to the extent necessary in order to effect timely payment
of
taxes, water rates, assessments, standard hazard insurance policy premiums
or
comparable items in connection with the related Mortgage Loan (to the extent
that the Mortgagor is required, but fails, to pay such items), provided that
it
or the Servicer has determined that the funds so advanced are recoverable from
escrow payments, reimbursement pursuant to Section 4.02 or
otherwise.
157
(b) Costs
incurred by the Master Servicer or by the Servicer in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage
Loans
may be added to the amount owing under the related Mortgage Note where the
terms
of the Mortgage Note so permit; provided,
however,
that the
addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders. Such costs,
to
the extent that they are unanticipated, extraordinary costs, and not ordinary
or
routine costs shall be recoverable as a Servicing Advance by the Master Servicer
pursuant to Section 4.02.
|
Section
9.07
|
Termination
of Servicing Agreement; Successor Servicer.
|
(a) The
Master Servicer shall be entitled to terminate the rights and obligations of
the
Servicer under the Servicing Agreement in accordance with the terms and
conditions of the Servicing Agreement and without any limitation by virtue
of
this Agreement other than seeking the NIMS Insurer’s consent to such
termination; provided,
however,
that in
the event of termination of the Servicing Agreement by the Master Servicer,
the
Master Servicer shall provide for the servicing of the Mortgage Loans by a
successor Servicer to be appointed as provided in the Servicing Agreement and
with the consent of the NIMS Insurer.
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 the Servicer (or by the Trust Fund, if the 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 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 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.
158
(c) If
the
Master Servicer acts as a successor Servicer, it will have the same obligations
to make Advances as the Servicer under the Servicing Agreement and to reimburse
itself for unreimbursed Advances if required by the Servicing Agreement but
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
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, the Trustee and the NIMS
Insurer.
|
Section
9.08
|
Master
Servicer Liable for Enforcement.
|
Notwithstanding
the Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee, any NIMS Insurer and the Certificateholders in accordance with
the provisions of this Agreement, to the extent of its obligations hereunder,
without diminution of such obligation or liability by virtue of the Servicing
Agreement. The Master Servicer shall use commercially reasonable efforts to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of
this Agreement and shall use commercially reasonable efforts to enforce the
provisions of the Servicing Agreement for the benefit of the Certificateholders
and any NIMS Insurer. The Master Servicer shall be entitled to enter into any
agreement with the Servicer for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. Except as expressly set forth herein, the Master Servicer
shall
have no liability under this Agreement or otherwise to any party for the acts
or
omissions of the Servicer in the performance by the Servicer of its obligations
under the Servicing Agreement. The parties to this Agreement hereby agree and
any third party beneficiaries to this Agreement shall be deemed to have agreed
that, notwithstanding anything in this Agreement or any other agreement relating
to the Mortgage Loans to the contrary, the Master Servicer shall not be under
any liability under this Agreement or otherwise to any party for any acts or
omissions of the Servicer or for information the Servicer has provided or has
been required to provide to the Master Servicer relating to Section
9.04(b).
|
Section
9.09
|
No
Contractual Relationship Between Servicer and Trustee or
Depositor.
|
The
Servicing Agreement that may be entered into and any other transactions or
services relating to the Mortgage Loans involving the Servicer in its capacity
as such and not as an originator shall be deemed to be between the Servicer,
the
Seller and the Master Servicer, and the Trustee, any NIMS Insurer and the
Depositor shall not be deemed parties thereto and shall have no obligations,
duties or liabilities with respect to the Servicer except as set forth in
Section 9.10 hereof, but shall have rights thereunder as third party
beneficiaries. It is furthermore understood and agreed by the parties hereto
that the obligations of the Servicer are set forth in their entirety in the
Servicing Agreement and the Servicer has no obligations under and is not
otherwise bound by the terms of this Agreement.
159
|
Section
9.10
|
Assumption
of Servicing Agreement by Trustee.
|
(a) In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Event of Default under this Agreement), after a
period not to exceed ninety days after the issuance of any notice of termination
pursuant to Section 6.14 or Section 9.28, as applicable, the Trustee shall
thereupon assume all of the rights and obligations of such Master Servicer
hereunder and under the Servicing Agreement entered into with respect to the
Mortgage Loans. The Trustee, its designee or any successor master servicer
appointed by the Trustee shall be deemed to have assumed all of the Master
Servicer’s interest herein and therein to the same extent as if the 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 the Servicing Agreement accruing prior to its replacement
as Master Servicer, and shall be liable to the Trustee and any NIMS Insurer,
and
hereby agrees to indemnify and hold harmless the Trustee and any NIMS Insurer
from and against all costs, damages, expenses and liabilities (including
reasonable attorneys’ fees) incurred by the Trustee or any NIMS Insurer as a
result of such liability or obligations of the Master Servicer and in connection
with the Trustee’s (or other successor master servicer’s) assumption (but not
its performance, except to the extent that costs or liability of the Trustee
(or
other successor master servicer’s) are created or increased as a result of
negligent or wrongful acts or omissions of the Master Servicer prior to its
replacement as Master Servicer) of the Master Servicer’s obligations, duties or
responsibilities thereunder; provided
that the
Master Servicer shall not indemnify or hold harmless the Trustee against
negligent or willful misconduct of the Trustee.
(b) The
Master Servicer that has been terminated shall, upon request of the Trustee
but
at the expense of such Master Servicer, deliver to the assuming party all
documents and records relating to the Servicing Agreement and the Mortgage
Loans
and an accounting of amounts collected and held by it and otherwise use its
best
efforts to effect the orderly and efficient transfer of the Servicing Agreement
to the assuming party.
|
Section
9.11
|
Due-on-Sale
Clauses; Assumption Agreements.
|
To
the
extent provided in the Servicing Agreement, to the extent Mortgage Loans contain
enforceable due-on-sale clauses, the Master Servicer shall cause the Servicer
to
enforce such clauses in accordance with the Servicing Agreement. If applicable
law prohibits the enforcement of a due-on-sale clause or such clause is
otherwise not enforced in accordance with the Servicing Agreement, and, as
a
consequence, a Mortgage Loan is assumed, the original Mortgagor may be released
from liability in accordance with the Servicing Agreement.
|
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 Servicer to, promptly notify the Trustee (or the 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 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 Custodial Agreement) the Trustee or the Custodian, to
deliver to the Servicer the related Mortgage File. Upon receipt of such
certification and request, the Trustee or the Custodian (with the consent,
and
at the direction of the Trustee), shall promptly release the related Mortgage
File to the Servicer and the Trustee shall have no further responsibility with
regard to such Mortgage File. Upon any such payment in full, the Master Servicer
is authorized, and the Servicer, to the extent such authority is provided for
under the Servicing Agreement, is authorized, to give, as agent for the Trustee,
as the mortgagee under the Mortgage that secured the Mortgage Loan, an
instrument of satisfaction (or assignment of mortgage without recourse)
regarding the Mortgaged Property subject to the Mortgage, which instrument
of
satisfaction or assignment, as the case may be, shall be delivered to the Person
or Persons entitled thereto against receipt therefor of such payment, it being
understood and agreed that no expenses incurred in connection with such
instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Collection Account.
160
(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 Servicing Agreement,
the Trustee shall execute such documents as shall be prepared and furnished
to
the Trustee by the Master Servicer, or by the Servicer (in form reasonably
acceptable to the Trustee) and as are necessary to the prosecution of any such
proceedings. The Trustee or the Custodian, shall, upon request of the Master
Servicer, or of the Servicer, and delivery to the Trustee or the Custodian,
of a
request for release of documents and a 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 Servicer). Such
receipt shall obligate the Master Servicer or the Servicer to return the
Mortgage File to the Trustee or the Custodian, as applicable, when the need
therefor by the Master Servicer or the Servicer no longer exists unless the
Mortgage Loan shall be liquidated, in which case, upon receipt of a certificate
of a Servicing Officer similar to that hereinabove specified, the receipt shall
be released by the Trustee or the Custodian, as applicable, to the Master
Servicer (or the Servicer).
|
Section
9.13
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
(a) The
Master Servicer shall transmit, or cause the Servicer to transmit, to the
Trustee such documents and instruments coming into the possession of the Master
Servicer or the Servicer from time to time as are required by the terms hereof
or of the Servicing Agreement to be delivered to the Trustee or the Custodian.
Any funds received by the Master Servicer or by the Servicer in respect of
any
Mortgage Loan or which otherwise are collected by the Master Servicer or the
Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders subject to the Master Servicer’s right to retain or withdraw
from the Collection Account the Master Servicing Fee and other amounts provided
in this Agreement and to the right of the Servicer to retain the Servicing
Fee
and other amounts as provided in the Servicing Agreement. The Master Servicer
shall, and shall (to the extent provided in the Servicing Agreement) cause
the
Servicer to, provide access to information and documentation regarding the
Mortgage Loans (i) to the Trustee, any NIMS Insurer, their respective
agents and accountants at any time upon reasonable request and during normal
business hours, and (ii) 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, in each case to the extent so required by applicable regulations
of
the Office of Thrift Supervision or such 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.
161
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, or the Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from Liquidation Proceeds
or Insurance Proceeds, shall be held by the Master Servicer, or by the Servicer,
for and on behalf of the Trustee and the Certificateholders and shall be and
remain the sole and exclusive property of the Trustee; provided,
however,
that the
Master Servicer and the Servicer shall be entitled to setoff against, and deduct
from, any such funds any amounts that are properly due and payable to the Master
Servicer or the Servicer under this Agreement or the Servicing Agreement and
shall be authorized to remit such funds to the Trustee in accordance with this
Agreement.
(c) The
Master Servicer hereby acknowledges that concurrently with the execution of
this
Agreement, the Trustee shall own or, to the extent that a court of competent
jurisdiction shall deem the conveyance of the Mortgage Loans from the 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, the Servicer or the Master Servicer that are
collected by the 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 Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which the
Servicer is entitled under the Servicing Agreement, or the Master Servicer
or
the Depositor is entitled to hereunder); and the Master Servicer agrees that
so
long as the Mortgage Loans are assigned to and held by the Trustee or the
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
the
Servicer shall be held by the Master Servicer or the Servicer for and on behalf
of the Trustee as the Trustee’s agent and bailee for purposes of perfecting the
Trustee’s security interest therein as provided by the applicable Uniform
Commercial Code or other applicable laws.
(d) The
Master Servicer agrees that it shall not, and shall not authorize the Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are deposited
in any Custodial Account, Escrow Account or the Collection Account, or any
funds
that otherwise are or may become due or payable to the Trustee, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
162
|
Section
9.14
|
Representations
and Warranties of the Master Servicer.
|
(a) The
Master Servicer hereby represents and warrants to the Depositor, any NIMS
Insurer 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 its
organization, 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;
163
(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 Offering Documents 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, the Trustee and any NIMS Insurer
and hold them harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Master Servicer’s representations and warranties
contained in Section 9.14(a). It is understood and agreed that the enforcement
of the obligation of the Master Servicer set forth in this Section to indemnify
the Depositor, the Trustee and any NIMS Insurer as provided in this Section
constitutes the sole remedy (other than as set forth in Section 6.14) of the
Depositor, the Trustee and any NIMS Insurer, 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, the
Trustee or any NIMS Insurer or notice thereof by any one of such parties to
the
other parties.
(c) It
is
understood and agreed that the representations and warranties of the Depositor
set forth in Sections 2.03(a)(i) through (vi) shall survive the execution and
delivery of this Agreement. The Depositor shall indemnify the Master Servicer
and hold it harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Depositor’s representations and warranties
contained in Sections 2.03(a)(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.
164
(d) Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by either the Depositor, the Master Servicer, the
Trustee or any NIMS Insurer 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); provided,
however,
that
this Subsection 9.14(d) shall not apply in connection with any failure by the
Master Servicer to comply with the provisions of Sections 9.25 and 9.26
hereof.
|
Section
9.15
|
Opinion.
|
On
or
before the Closing Date, the Master Servicer shall cause to be delivered to
the
Depositor, the Seller, the Trustee, the Swap Counterparty and any NIMS Insurer
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 the Servicer, standard fire and casualty
insurance and, where applicable, flood insurance, all in accordance with the
provisions of this Agreement and the Servicing Agreement, as applicable. It
is
understood and agreed that such insurance shall be with insurers meeting the
eligibility requirements set forth in the Servicing Agreement and that no
earthquake or other additional insurance is to be required of any Mortgagor
or
to be maintained on property acquired in respect of a defaulted loan, other
than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance.
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by the
Servicer, under any insurance policies maintained pursuant to this Section
9.16
or the 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 the 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 the Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added
to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan
so
permit; provided,
however,
that the
addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders and shall be
recoverable by the Master Servicer or the Servicer pursuant to Section
4.02.
165
|
Section
9.17
|
Presentment
of Claims and Collection of Proceeds.
|
The
Master Servicer shall cause the Servicer (to the extent provided in the
Servicing Agreement) to, prepare and present on behalf of the Trustee and the
Certificateholders all claims under the Insurance Policies with respect to
the
Mortgage Loans, and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured’s claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to the Servicer and remitted to the Master Servicer)
in
respect of such policies or bonds shall be promptly deposited in the Collection
Account or the Custodial Account upon receipt, except that any amounts realized
that are to be applied to the repair or restoration of the related Mortgaged
Property as a condition requisite to the presentation of claims on the related
Mortgage Loan to the insurer under any applicable Insurance Policy need not
be
so deposited (or remitted).
|
Section
9.18
|
[Reserved].
|
|
Section
9.19
|
Trustee
To Retain Possession of Certain Documents.
|
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 Custodian) shall retain possession and custody
of
each Mortgage File in accordance with and subject to the terms and conditions
of
this Agreement. The Master Servicer shall promptly deliver or cause the Servicer
to deliver to the Trustee (or the Custodian), upon the execution or receipt
thereof the originals of such documents or instruments that constitute portions
of the Mortgage File that come into the possession of the Master Servicer or
the
Servicer from time to time.
|
Section
9.20
|
[Reserved].
|
|
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 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 additional compensation and pursuant to Section 4.04(c)
all
income or gain realized from any investment of funds in the Certificate Account
during the Master Servicer Investment Period shall be for the benefit of the
Master Servicer as additional compensation. The provisions of this Section
9.21
are subject to the provisions of Section 6.14.
166
|
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 Servicer to sell,
to
the extent provided in the Servicing Agreement, any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement and the Servicing Agreement, as applicable, but in all events within
the time period, and subject to the conditions set forth in Article X hereof.
Pursuant to its efforts to sell such REO Property, the Master Servicer shall
protect and conserve, or cause the Servicer to protect and conserve, such REO
Property in the manner and to such extent required by the Servicing Agreement,
subject to Article X hereof.
(b) The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from the Servicer, in connection with the operation
of any REO Property in the Collection Account.
(c) The
Master Servicer and the 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
the
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.
(d) The
Liquidation Proceeds from the final disposition of the REO Property, net of
any
payment to the Master Servicer and the Servicer as provided above, shall be
deposited in the Collection Account on or prior to the Determination Date in
the
month following receipt thereof and be remitted by wire transfer in immediately
available funds on the next succeeding Master Servicer Remittance Date to the
Trustee for deposit into the Certificate Account.
|
Section
9.23
|
Notices
to the Depositor and the Trustee.
|
(a) The
Master Servicer shall promptly notify the Trustee, the Sponsor and the Depositor
(i) of any legal proceedings pending against the Master Servicer of the type
described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Master
Servicer shall become (but only to the extent not previously disclosed to the
Master Servicer and the Depositor) at any time an affiliate of any of the
parties listed on Exhibit V to this Agreement. On or before March 1st
of each
year, the Depositor shall distribute the information in Exhibit V hereto to
the
Master Servicer.
(b) Not
later
than three 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. The parties to this Agreement acknowledge
that
the performance by the Master Servicer of its duties under this Section 9.23(b)
related to the timely preparation and delivery of such information is contingent
upon the Servicer strictly observing all requirements and deadlines in the
performance of its duties under the Servicing Agreement. 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 the
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.
167
|
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 a statement, deemed to have been certified
by a
Servicing Officer, setting forth the status of the Collection Account maintained
by the Master Servicer as of the close of business on the related Distribution
Date, indicating that all distributions required by this Agreement to be made
by
the Master Servicer have been made (or if any required distribution has not
been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from the Collection Account maintained by the Master
Servicer. Copies of such statement shall be provided by the Master Servicer,
upon request, to the Depositor, Attention: Contract Finance, any NIMS Insurer
and 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 Servicer or by
the
Depositor.
(c) All
information, reports and statements prepared by the Master Servicer under this
Agreement shall be based on information supplied to the Master Servicer by
the
Servicer without independent verification thereof and the Master Servicer shall
be entitled to rely on such information.
168
|
Section
9.25
|
Assessment
of Compliance and Attestation
Reports.
|
(a) Assessment
of Compliance
(i) By
March
15 of each year, commencing in March 2008, the Master Servicer, the Credit
Risk
Manager and the Paying Agent (if other than 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(e), including, if there has been any material instance of noncompliance
with the Relevant Servicing Criteria, a discussion of each such failure and
the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such party’s assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
(ii) When
the
Master Servicer, the Credit Risk Manager and the Paying Agent (if other than
the
Trustee) (or any Servicing Function Participant engaged by it) submit their
assessments to the Trustee and the Depositor, such parties will also at such
time include the assessment (and attestation pursuant to subsection (b) of
this
Section 9.25) of each Servicing Function Participant engaged by it and shall
indicate to the Depositor what Relevant Servicing Criteria will be addressed
in
any such reports prepared by any such Servicing Function
Participant.
(iii) Promptly
after receipt of each report on assessment of compliance, the Exchange Act
Signing Party shall confirm that the assessments, taken as a whole, address
all
Relevant Servicing Criteria and taken individually address the Relevant
Servicing Criteria (and disclose the inapplicability of the Servicing Criteria
not determined to be Relevant Criteria) for each party as set forth on Exhibit
S
and on any similar exhibit set forth in the Servicing Agreement in respect
of
the Servicer, and the Custodial Agreement in respect of the 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 S and on any similar exhibit set forth in the Servicing Agreement
and
the Custodial Agreement to determine such Relevant Servicing Criteria and
Relevant Servicing Criteria, as the case may be, and shall not otherwise be
reporting on the content of or sufficiency of such assessments.
(b) Attestation
Reports
(i) By
March
15 of each year for so long as the Depositor is subject to Exchange Act
reporting requirements for the BNC Mortgage Loan Trust 2007-3, commencing in
March 2008, the Master Servicer, the Credit Risk Manager and the Paying Agent
(if other than 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, the Credit Risk Manager and the
Paying Agent, 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, 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. 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.
169
(ii) Promptly
after receipt of such report from the Master Servicer, the Credit Risk Manager,
the Paying Agent (if other than the Trustee) or any Servicing Function
Participant engaged by such parties, the Exchange Act Signing Party shall
confirm that each assessment submitted pursuant subsection (a) of this Section
9.25 is coupled with an attestation meeting the requirements of this Section
and
notify the Depositor of any exceptions.
(c) The
Master Servicer’s, Trustee’s and Paying Agent’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.
|
Section
9.26
|
Annual
Statement of Compliance with Relevant Servicing Criteria.
|
(a) The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor
and
the Trustee on or before March 15 of each year, commencing in March 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.
Copies
of
such statements shall be provided to any Certificateholder upon request, by
the
Master Servicer or by the Trustee at the Master Servicer’s expense if the Master
Servicer failed to provide such copies (unless (i) the Master Servicer shall
have failed to provide the Trustee with such statement or (ii) the Trustee
shall
be unaware of the Master Servicer’s failure to provide such
statement).
170
(b) The
Master Servicer shall notify the Trustee, the Depositor and the Sponsor within
five (5) days of knowledge thereof (i) of any legal proceedings pending against
the Master Servicer of the type described in Item 1117 (§ 229.1117) of
Regulation AB and (ii) if the Master Servicer shall become (but only to the
extent not previously disclosed) at any time an affiliate of any of the parties
listed on Exhibit V to this Agreement. On or before March 1st
of each
year, the Depositor shall distribute the information in Exhibit V to the Master
Servicer.
|
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.
|
Section
9.28
|
Resignation
of Master Servicer.
|
Except
as
otherwise provided in Sections 9.27 and 9.29 hereof, the Master Servicer shall
not resign from the obligations and duties hereby imposed on it unless it
determines that the Master Servicer’s duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable law
with any other activities carried on by it and cannot be cured. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee and any NIMS Insurer. No such resignation shall become
effective until a period of time not to exceed 90 days after the Trustee
receives written notice thereof from the Master Servicer and until the Trustee
shall have assumed, or a successor master servicer acceptable to any NIMS
Insurer and the Trustee shall have been appointed by the Trustee and until
such
successor shall have assumed, the Master Servicer’s responsibilities and
obligations under this Agreement. Notice of such resignation shall be given
promptly by the Master Servicer and the Depositor to the Trustee and any NIMS
Insurer.
|
Section
9.29
|
Assignment
or Delegation of Duties by the Master Servicer.
|
(a) Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any Subservicer, Subcontractor
or 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, any NIMS Insurer 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, and the name of any such affiliated Subcontractor or
Subservicer shall be given promptly by the Master Servicer to the Depositor,
the
Trustee and any NIMS Insurer. If, pursuant to any provision hereof, the duties
of the Master Servicer are transferred to a successor master servicer, the
entire amount of the Master Servicing Fees and other compensation payable to
the
Master Servicer pursuant hereto, including amounts payable to or permitted
to be
retained or withdrawn by the Master Servicer pursuant to Section 9.21 hereof,
shall thereafter be payable to such successor master servicer.
171
(b) 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 and
an
assessment report as provided in Section 9.26, which reports the Master Servicer
shall include in its attestation and assessment reports.
|
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 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 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 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 its duties
hereunder or by reason of reckless disregard of his or its obligations and
duties hereunder. The Master Servicer, the Seller and the Depositor and any
director, officer, employee or agent of any of them may rely in good faith
on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Master Servicer, the Seller
and the Depositor 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.
172
The
Master Servicer shall not be liable for any acts or omissions of the Servicer.
In particular, the Master Servicer shall not be liable for any course of action
taken by the Servicer with respect to loss mitigation of defaulted Mortgage
Loans at the direction of the Credit Risk Manager or the Seller pursuant to
the
Credit Risk Management Agreement. Further, the Master Servicer shall not be
liable for performance by the Servicer under the Credit Risk Management
Agreement. The Master Servicer shall not be liable under this Agreement or
any
other agreement relating to the Mortgage Loans or the Certificates, including
with respect to any third-party beneficiaries thereof, for any losses,
liabilities or expenses incurred in connection with any action taken, suffered
or omitted to be taken by the Master Servicer in accordance with the direction
of any NIMS Insurer, other than for any losses, liabilities or expenses
resulting from the negligence or willful misconduct of the Master
Servicer.
|
Section
9.31
|
Indemnification;
Third-Party Claims.
|
The
Master Servicer agrees to indemnify the Depositor, the Sponsor, the Trustee
(including in its capacity as Certificate Registrar and the Paying Agent) and
any NIMS Insurer and their respective officers, directors, agents, employees
and
affiliates, and hold each of them harmless against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Sponsor, the Trustee or any NIMS Insurer may sustain arising out of or
based
upon (a) any material breach by the Master Servicer of any if its obligations
hereunder, including particularly its obligations to provide any reports under
Section 9.25(a), Section 9.25(b) or Section 9.26 or any information, data or
materials required to be included in any Exchange Act report, 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
in
any information, data or materials provided by the Master Servicer, or (c)
the
negligence, bad faith or willful misconduct of the Master Servicer in connection
with its performance hereunder. The Depositor, the Sponsor, the Trustee and
any
NIMS Insurer 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, the Trustee or any NIMS Insurer 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.
173
|
Section
9.32
|
Special
Servicing of Delinquent Mortgage Loans.
|
If
permitted under the terms of the Servicing Agreement, the Seller may appoint,
pursuant to the terms of the Servicing Agreement and with the written consent
of
the Depositor, the Master Servicer, the Trustee and any 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 from its own funds, without
right of reimbursement from the Trust Fund. Any fees paid to any such special
servicer shall not exceed the Servicing Fee Rate.
|
Section
9.33
|
Alternative
Index.
|
In
the
event that the Index for any Mortgage Loan, as specified in the related Mortgage
Note, becomes unavailable for any reason, the Master Servicer shall select
an
alternative index, which in all cases shall be an index that constitutes a
qualified rate on a regular interest under the REMIC Provisions, in accordance
with the terms of such Mortgage Note or, if such Mortgage Note does not make
provision for the selection of an alternative index in such event, the Master
Servicer shall, subject to applicable law, select an alternative index based
on
information comparable to that used in connection with the original Index and,
in either case, such alternative index shall thereafter be the Index for such
Mortgage Loan.
|
Section
9.34
|
Duties
of the Credit Risk Manager.
|
(a) The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager. For and
on
behalf of the Depositor, the Credit Risk Manager will provide reports and
recommendations concerning certain delinquent and defaulted Mortgage Loans,
and
as to the collection of any Prepayment Premiums with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information provided
pursuant to the Credit Risk Management Agreement to the Credit Risk Manager
by
the Servicer. The Credit Risk Manager shall look solely to the Servicer and/or
the Master Servicer for all information and data (including loss and delinquency
information and data) and loan level information and data relating to the
servicing of the Mortgage Loans and the Trustee shall not have any obligation
to
provide any such information to the Credit Risk Manager and shall not otherwise
have any responsibility under the Credit Risk Management Agreement.
(b) On
or
about the 15th
calendar
day of each month, the Credit Risk Manager shall have prepared and shall make
available to any NIMS Insurer, the Trustee, the Swap Counterparty and each
Certificateholder, the following reports (each such report to be made in a
format compatible with XXXXX filing requirements):
(i)
Watchlist
Report:
A
listing of individual Mortgage Loans that are of concern to the Credit Risk
Manager. Each Watchlist Report shall contain a listing of Mortgage Loans in
any
delinquency status, including current and paid-off loans, and may contain the
comments of the Credit Risk Manager in its sole discretion. The Watchlist Report
shall be presented in substantially the same format attached hereto as Exhibit
R-1;
174
(ii)
Loss
Severity Report:
A
compilation and summary of all losses, indicating the loan loss severity for
each Mortgage Pool. Each Loss Severity Report shall include detail of all losses
reported by the Servicer or the Master Servicer as Realized Losses, except
those
for which the Servicer or the Master Servicer has not provided detail adequate
for reporting purposes. The Loss Severity Report shall be presented in
substantially the same format attached hereto as Exhibit R-2;
(iii)
[reserved];
(iv)
Prepayment
Premiums Report:
A
summary of Prepayment Premiums assessed or waived by the Servicer. The
Prepayment Premiums Report shall be presented in substantially the same format
attached hereto as Exhibit R-4; and
(v)
Analytics
Report:
Analytics Reports shall include statistical and/or graphical portrayals
of:
(D) Delinquency
Trend:
The
delinquency trend, over time, of the Mortgage Loans;
(E) Prepayment
Analysis:
The
constant prepayment rate “CPR” experience of the Mortgage Loans;
and
(F) Standard
Default Assumption:
The
Standard Default Assumption experience of the Mortgage Loans.
The
Analytics Report shall be presented in substantially the same format attached
hereto as Exhibit R-5.
The
Credit Risk Manager shall make such reports and any additional information
reasonably requested by the Depositor available each month to
Certificateholders, the Trustee, any NIMS Insurer and the Rating Agencies via
the Credit Risk Manager’s internet website. The Credit Risk Manager’s internet
website shall initially be located at xxxxx://xxxxxxx.xxxxxxx.xxx.
The
user name for access to the website shall be the Certificateholder’s e-mail
address and the password shall be “BNC 2007-3.” The Trustee shall not have any
obligation to review such reports or otherwise monitor or supervise the
activities of the Credit Risk Manager.
(c) [Reserved].
(d) The
Credit Risk Manager shall reasonably cooperate with the Depositor and the
Exchange Act Signing Party in connection with the Trust Fund’s satisfying the
reporting requirements under the Exchange Act with respect to reports prepared
by the Credit Risk Manager.
(e) The
Credit Risk Manager has not and shall not engage any Subcontractor without
(a)
giving notice to the Sponsor, the Trustee, the Master Servicer and the Depositor
and (b) requiring any such Subcontractor to provide to the Credit Risk Manager
an assessment report as provided for in Section 9.25(a) above and an attestation
report as provided in Section 9.25(b) above, which reports the Credit Risk
Manager shall include in its assessment and attestation reports.
175
(f) By
March
15 of each year (or if such day is not a Business Day, the immediately preceding
Business Day), the Credit Risk Manager shall deliver a signed certification,
in
the form attached hereto as Exhibit U (the “Credit Risk Manager Certification”),
for the benefit of the Depositor, the Sponsor, the Master Servicer and the
Trustee and for the benefit of the Person(s) signing the Form 10-K
Certification; provided
(i) that
the Credit Risk Manager Certification shall be so provided by March 15 of such
year only to the extent that the Depositor delivers a draft (without exhibits)
of the applicable Annual Report on Form 10-K to the Credit Risk Manager by
the
fifth Business Day in March of such year and (ii) in the event that the
Depositor delivers the draft Form 10-K referred to in clause (i) after the
fifth
Business Day in March of such year, the Credit Risk Manager shall deliver the
Credit Risk Manager Certification as soon as practicable but no later than
five
calendar days of delivery to the Credit Risk Manager of such draft Form
10-K.
(g) In
the
event that prior to the filing date of the Form 10-K in March of each year,
the
Credit Risk Manager has knowledge or information material to the Credit Risk
Manager Certification, the Credit Risk Manager shall promptly notify the
Depositor and the Trustee, in writing.
|
Section
9.35
|
Limitation
Upon Liability of the Credit Risk Manager.
|
Except
as
provided pursuant to Section 9.36 of this Agreement, neither the Credit Risk
Manager, nor any of the directors, officers, employees or agents of the Credit
Risk Manager, shall be under any liability to the Trustee, the
Certificateholders or the Depositor for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, in reliance
upon information provided by the Servicer under the Credit Risk Management
Agreement or for errors in judgment; provided, however,
that
this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
or
by reason of reckless disregard for its obligations and duties under this
Agreement or the Credit Risk Management Agreement. The Credit Risk Manager
and
any director, officer, employee or agent of the Credit Risk Manager 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, and may rely
in good faith upon the accuracy of information furnished by the Servicer
pursuant to the Credit Risk Management Agreement in the performance of its
duties thereunder and hereunder.
|
Section
9.36
|
Indemnification
by the Credit Risk Manager.
|
The
Credit Risk Manager agrees to indemnify the Depositor, the Master Servicer
and
the Trustee, 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 9.34(e) or any failure by the Credit
Risk
Manager to deliver any information, report, certification, accountants’ letter
or other material when and as required under this Agreement, including any
report under Sections 9.25(a) or (b).
176
|
Section
9.37
|
Removal
of Credit Risk Manager.
|
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than a 66-2/3% Voting Interests in the Trust, in the exercise
of its or their sole discretion, at any time, without cause, upon ten (10)
days
prior written notice. The Certificateholders shall provide such written notice
to the Trustee and upon receipt of such notice, the Trustee shall provide
written notice to the Credit Risk Manager of its removal, effective upon receipt
of such notice.
ARTICLE
X
REMIC
ADMINISTRATION
|
Section
10.01
|
REMIC
Administration.
|
(a) REMIC
elections as set forth in the Preliminary Statement 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. For purposes of such designations,
the
interest rate of any regular interest that is computed by taking into account
the weighted average of the Net Mortgage Rates of the Mortgage Loans shall
be
reduced by the amount of 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, (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, including but not limited to
any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMIC that involve the Internal
Revenue Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit
but not expenses of litigation (except as described in (ii)); or (ii) such
expenses or liabilities (including taxes and penalties) are attributable to
the
negligence or willful misconduct of the Trustee in fulfilling its duties
hereunder (including its duties as tax return preparer). The Trustee shall
be
entitled to reimbursement of expenses to the extent provided in clause (i)
above
from the Certificate Account, provided,
however,
the
Trustee shall not be entitled to reimbursement for expenses incurred in
connection with the preparation of tax returns and other reports as required
by
Section 6.20 and this Section.
177
(d) The
Trustee shall prepare, sign and file, all of each REMIC’s federal and applicable
state tax and information returns as such REMIC’s direct representative. As used
herein, applicable state tax and information returns shall mean returns as
may
be required by the laws of any state the applicability of which to the Trust
Fund shall have been confirmed to the Trustee in writing either by the delivery
to the Trustee of an Opinion of Counsel to such effect, or by delivery to the
Trustee of a written notification to such effect by the taxing authority of
such
state. The expenses of preparing and filing such returns shall be borne by
the
Trustee.
(e) The
Trustee or its designee shall perform on behalf of each REMIC all reporting
and
other tax compliance duties that are the responsibility of such REMIC under
the
Code, the REMIC Provisions, or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority. Among its other duties,
if required by the Code, the REMIC Provisions, or other such guidance, the
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.
The
Trustee shall be entitled to receive reasonable compensation from the Trust
for
the performance of its duties under this subsection (e); provided,
however,
that
such compensation shall not exceed $5,000 per year; provided,
further,
that
after a Section 7.01(c) Purchase Event, any expenses incurred by the Trustee
in
connection with such Section 7.01(c) Purchase Event shall be reimbursed to
the
Trustee, regardless of the limitation set forth above, in accordance with
Section 4.04(b).
(f) The
Trustee, the Master Servicer and the Holders of Certificates shall take any
action within their respective control and scope of duties, or cause any REMIC
to take any action necessary to create or maintain the status of any REMIC
as a
REMIC under the REMIC Provisions and shall assist each other as necessary to
create or maintain such status. None of the Trustee, the Master Servicer or
the
Holder of any Residual Certificate shall knowingly take any action, within
its
respective control, cause any REMIC to take any action or fail to take (or
fail
to cause to be taken) any action within its respective control and scope of
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, any NIMS Insurer
and the Master Servicer have received an Opinion of Counsel addressed to the
Trustee (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 Master Servicer, any NIMS Insurer
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 Master Servicer or any NIMS Insurer has
advised it in writing that an Adverse REMIC Event could occur.
178
(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 Certificate
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.
(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) On
or
before October 15 of each calendar year beginning in 2007, the Trustee shall
deliver to any NIMS Insurer an Officer’s Certificate 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
Trustee shall treat each of the Basis Risk Reserve Fund and the Supplemental
Interest Trust (exclusive of the Collateral Account) as an outside reserve
fund
within the meaning of Treasury Regulation Section 1.860G-2(h) that is owned
by
the Holders of the Class X Certificates and that is not an asset of any REMIC
and all amounts deposited into the Basis Risk Reserve Fund or the Supplemental
Interest Trust shall be treated as amounts distributed to the Class X
Certificateholders. The Trustee shall treat the Collateral Account as an outside
reserve fund that is owned by the Swap Counterparty and the Cap
Counterparty.
(m) For
federal income tax purposes, upon any sale of the property held by the Trust
Fund pursuant to Section 7.01(b), any NIM Redemption Amount paid by the Master
Servicer shall not be treated as a portion of the purchase price paid for such
property but shall instead be treated as an amount paid by the Master Servicer
to the Holder of the Class X Certificates in exchange for an interest in the
Class X Certificates immediately before the purchase of the property held by
the
Trust Fund.
(n) The
Trustee shall treat the beneficial owners of Certificates (other than the Class
P, Class X, Class LT-R and Class R Certificates) as having entered into a
notional principal contract with the beneficial owners of the Class X
Certificates. Pursuant to each such notional principal contract, all beneficial
owners of LIBOR 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 interest in the Upper Tier REMIC corresponding to
such
Class of Certificates over
(ii)
the
amount payable on such Class of Certificates on such Distribution Date (such
excess, a “Class I Shortfall”). A Class I Shortfall payable from interest
collections shall be allocated to each Class of Certificates to the extent
that
interest accrued on such Class for the related Accrual Period at the Certificate
Interest Rate for a Class, computed by substituting “REMIC 3 Net Funds Cap” for
the applicable “Net Funds Cap” in the definition thereof, exceeds the amount of
interest accrued for the related Accrual Period based on the applicable Net
Funds Cap, and a Class I Shortfall payable from principal collections shall
be
allocated to the most subordinate Class of Certificates with an outstanding
principal balance to the extent of such balance. In addition, pursuant to such
notional principal contract, the beneficial owner of the Class X Certificates
shall be treated as having agreed to pay Basis Risk Shortfalls and Unpaid Basis
Risk Shortfalls to the Owners of the LIBOR Certificates in accordance with
the
terms of this Agreement. Any
payments to the Certificates in light of the foregoing shall not be payments
with respect to a “regular interest” in a REMIC within the meaning of Code
Section 860G(a)(1). However, any payment from the 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 the Upper Tier REMIC and as having
been paid by such beneficial
owners
to the
Supplemental Interest Trust pursuant to the notional principal
contract.
Thus,
each Certificate (other than a Class P, Class R and Class LT-R Certificates)
shall be treated as representing not only ownership of regular interests in
the
Upper Tier REMIC, but also ownership of an interest in (and obligations with
respect to) a notional principal contract. For tax purposes, the notional
principal contract shall be deemed to have a value in favor of the Certificates
entitled to receive Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
of
$38,831.31 as of the Closing Date.
179
(o) Notwithstanding
the priority and sources of payments set forth in Article V hereof or otherwise,
the Trustee shall account for all distributions on the Certificates as set
forth
in this Section 10.01. In no event shall any payments of Basis Risk Shortfalls
or Unpaid Basis Risk Shortfalls provided for in this Section 10.01 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.
|
Neither
the Depositor, the Master Servicer nor the Trustee shall sell, dispose of,
or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC, nor sell or dispose of any investments in the Certificate
Account for gain, nor accept any contributions to any REMIC after the Closing
Date, unless the Trustee and any NIMS Insurer has received an Opinion of Counsel
addressed to the Trustee (at the expense of the party causing such sale,
disposition, or substitution) 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).
180
|
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, including
in its individual capacity, shall indemnify any 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 Certificateholders
or the Holder of such Residual Certificate, 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, however, in no event shall the Trustee have any liability (1) for
any
action or omission that is taken in accordance with and in compliance with
the
express terms of, or which is expressly permitted by the terms of, this
Agreement or the 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) even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action. In addition, the Trustee
shall not have any liability for the actions or failure to act of any other
party hereto.
|
Section
10.04
|
REO
Property.
|
(a) Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not, except to the extent provided in the Servicing
Agreement, knowingly permit the 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
the
Servicer to advise, the Trustee and any NIMS Insurer 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 Servicer (to the extent provided in the
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 Servicer (to the extent provided in the Servicing Agreement) 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 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 the 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 the Servicer, before the end of the
three year period or the Extended Period, as applicable, to (i) purchase such
REO Property at a price equal to the REO Property’s fair market value or (ii)
auction the REO Property to the highest bidder (which may be the Servicer)
in an
auction reasonably designed to produce a fair price prior to the expiration
of
the three-year period or the Extended Period, as the case may be.
181
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) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may be amended from
time to time by the Depositor, the Master Servicer and the Trustee, with the
consent of any NIMS Insurer, but without the consent of the Credit Risk Manager
or the Swap Counterparty (except to the extent that the rights or obligations
of
(1) the Credit Risk Manager or the Swap Counterparty hereunder or (2) the Swap
Counterparty under the Swap Agreement are affected thereby, and except to the
extent the ability of the Trustee on behalf of the Supplemental Interest Trust
and the Trust Fund to perform fully and timely its obligations under the Swap
Agreement is adversely affected, 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 the
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 as evidenced by an Opinion of
Counsel. 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, any NIMS Insurer and the Swap Counterparty shall be provided with
an Opinion of Counsel addressed to the Trustee, any NIMS Insurer and the Swap
Counterparty (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 receives written confirmation from each Rating Agency
that such amendment will not cause such Rating Agency to reduce the current
rating assigned to the Certificates.
182
(b) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may also be amended
from time to time by the Depositor, the Master Servicer and the Trustee, with
the consent of any NIMS Insurer, but without the consent of the Credit Risk
Manager or the Swap Counterparty (except to the extent that the rights or
obligations of (1) the Credit Risk Manager or the Swap Counterparty hereunder
or
(2) the Swap Counterparty under the Swap Agreement are affected thereby, or
the
ability of the Trustee on behalf of the Supplemental Interest Trust and the
Trust Fund to perform fully and timely its obligations under the Swap Agreement
is adversely affected, in which case prior written consent of the Swap
Counterparty is required) and with the consent of the Holders of not less than
66-2/3% of the Class Principal Amount (or Percentage Interest) of each Class
of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders; provided,
however,
that no
such amendment shall be made unless the Trustee and any NIMS Insurer 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 is permitted hereunder; 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 Percentage Interest) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to “Holder” or
“Holders” shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(c) After
a
Section 7.01(c) Purchase Event but on or prior to a Trust Fund Termination
Event, this Agreement may be amended from time to time by the Depositor, the
Master Servicer, the LTURI-holder and the Trustee, but without the consent
of
the Credit Risk Manager, the Cap Counterparty, or the Swap Counterparty (except
to the extent that the rights or obligations of (1) the Credit Risk Manager,
the
Cap Counterparty or the Swap Counterparty hereunder or (2) the Cap Counterparty
or the Swap Counterparty under the Interest Rate Cap Agreement or the Swap
Agreement, respectively, or the ability of the Trustee on behalf of the
Supplemental Interest Trust and the Trust Fund to perform fully and timely
its
obligations under the Interest Rate Cap Agreement or Swap Agreement, as
applicable, is adversely affected, in which case prior written consent of the
Credit Risk Manager, the Cap Counterparty or the Swap Counterparty, as
applicable, is required). Prior to entering into any amendment pursuant to
this
paragraph, the Trustee and the Swap Counterparty shall be provided with an
Opinion of Counsel addressed to the Trustee, any NIMS Insurer and the Swap
Counterparty (at the expense of the party requesting such amendment) to the
effect that such amendment is permitted under this Section and will not result
in an Adverse REMIC Event.
183
(d) Promptly
after the execution of any such amendment, the Trustee shall furnish written
notification of the substance of such amendment to each Holder, the Depositor,
the Swap Counterparty, any NIMS Insurer and to the Rating Agencies.
(e) It
shall
not be necessary for the consent of Holders under this Section 11.03 to approve
the particular form of any proposed amendment, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by Holders
shall be subject to such reasonable regulations as the Trustee may
prescribe.
(f) Notwithstanding
anything to the contrary in the Servicing Agreement, the Trustee shall not
consent to any amendment of the Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in Section 11.03(a) or 11.03(b)
with
respect to amendment of this Agreement and (ii) except for a Permitted Servicing
Amendment, any such amendment pursuant to Section 11.03(a)(iii) shall not be
materially inconsistent with the provisions of the Servicing Agreement.
(g) Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor, the Master Servicer and the Trustee to
the
extent necessary, in the judgment of the Depositor and its counsel, to comply
with the Rules.
|
Section
11.04
|
Voting
Rights.
|
Except
to
the extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Principal Amount (or Percentage Interest),
Certificates owned by the Depositor, the Master Servicer, the Trustee, the
Servicer, the Credit Risk Manager or Affiliates thereof are not to be counted
so
long as such Certificates are owned by the Depositor, the Master Servicer,
the
Trustee, the Servicer, the Credit Risk Manager 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, any NIM Security holder 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 Master Servicer or 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) and (ii) a copy
of
any other document incorporated by reference in the Prospectus (to the extent
that the Trustee has such documents in 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.
184
(c) On
each
Distribution Date, the Trustee shall make available on its website to the
Depositor, Attention: Contract Finance, a copy of the report delivered to
Certificateholders pursuant to Section 4.03.
|
Section
11.06
|
Governing
Law.
|
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
|
Section
11.07
|
Notices.
|
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when received by (a) in the case of the
Depositor, Structured Asset Securities Corporation, 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Mortgage Finance BNC 2007-3, (b) in
the case of the Seller, Xxxxxx Brothers Holdings Inc., 000 Xxxxxxx Xxxxxx,
00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Mortgage Finance BNC 2007-3, (c) in
the case of the Credit Risk Manager, Xxxxxxx Fixed Income Services Inc., 0000
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attention: General Counsel,
(d) in the case of the Trustee, Citibank, N.A., to the applicable Corporate
Trust Office, (e) in the case of the Master Servicer, Aurora Loan Services
LLC,
00000 Xxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000; Attention: Master
Servicing, BNC 2007-3, and (f) in the case of the Cap Counterparty or the Swap
Counterparty, at the address therefore set forth in the Interest Rate Cap
Agreement and Swap Agreement, respectively, or, as to each party, such other
address as may hereafter be furnished by such party to the other parties in
writing. 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.
185
|
Section
11.09
|
Indulgences;
No Waivers.
|
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted to
have
granted such waiver.
|
Section
11.10
|
Headings
Not To Affect Interpretation.
|
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
|
Section
11.11
|
Benefits
of Agreement.
|
The
Depositor shall promptly notify the Custodian and the Trustee in writing of
the
issuance of any Class of NIMS Securities issued by a NIMS Insurer and the
identity of such NIMS Insurer. Thereafter, 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 be subject to and have the right to enforce the
provisions of this Agreement so long as the NIMS Securities remaining
outstanding or the NIMS Insurer is owed amounts in respect of its guarantee
of
payment of such NIMS Securities. 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 assignees under the Swap Agreement, the Holders of the
Certificates and the NIMS Insurer, any benefit or any legal or equitable right,
power, remedy or claim under this Agreement, except to the extent specified
in
Sections 5.08 and Section 11.15, as applicable.
|
Section
11.12
|
Special
Notices to the Rating Agencies and any NIMS Insurer.
|
(a) The
Depositor shall give prompt notice to the Rating Agencies and any 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;
186
(vi)
the
making of a final payment pursuant to Section 7.02; and
(vii)
any
termination of the rights and obligations of the Servicer under the 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
S&P, to:
Standard
& Poor’s Ratings Services
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
Moody’s, to:
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
(c) The
Trustee shall provide or make available to the Rating Agencies reports prepared
pursuant to Section 4.03. In addition, the Trustee shall, at the expense of
the
Trust Fund, make available to each Rating Agency such information as such Rating
Agency may reasonably request regarding the Certificates or the Trust Fund,
to
the extent that such information is reasonably available to the
Trustee.
|
Section
11.13
|
Conflicts.
|
To
the
extent that the terms of this Agreement conflict with the terms of the Servicing
Agreement, the Servicing Agreement shall govern, unless such provisions shall
adversely affect the Trustee or the Trust Fund.
|
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
Swap Counterparty, any NIMS Insurer and the Trustee thirty days prior to any
proposed transfer or assignment by such Seller of its rights under the Servicing
Agreement or of the servicing thereunder or delegation of its rights or duties
thereunder or any portion thereof to any other Person other than the initial
Servicer under the Servicing Agreement. In addition, the ability of the Seller
to transfer or assign its rights and delegate its duties under the Servicing
Agreement or to transfer the servicing thereunder 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 any NIMS Insurer
and the Master Servicer to such transfer;
187
(ii)
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;
(iii)
Such
successor servicer must satisfy the seller/servicer eligibility standards in
the
Servicing Agreement, exclusive of any experience in mortgage loan
origination;
(iv)
Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by the Servicer under the Servicing
Agreement;
(v)
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
(vi)
The
Seller shall, at its cost and expense, take such steps, or cause the terminated
Servicer to take such steps, as may be necessary or appropriate to effectuate
and evidence the transfer of the servicing of the Mortgage Loans to such
successor servicer, including, but not limited to, the following: (A) to the
extent required by the terms of the Mortgage Loans and by applicable federal
and
state laws and regulations, the Seller shall cause the prior Servicer to timely
mail to each obligor under a Mortgage Loan any required notices or disclosures
describing the transfer of servicing of the Mortgage Loans to the successor
servicer; (B) prior to the effective date of such transfer of servicing, the
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 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 servicer, 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 successor servicer, continue to forward
to such successor servicer, within one Business Day of receipt, the amount
of
any payments or other recoveries received by the prior Servicer, and to notify
the successor servicer of the source and proper application of each such payment
or recovery; and (F) the Seller shall cause the prior Servicer to, after the
effective date of transfer of servicing to the successor servicer, continue
to
cooperate with the successor servicer to facilitate such transfer in such manner
and to such extent as the successor servicer may reasonably request.
Notwithstanding the foregoing, the prior Servicer shall be obligated to perform
the items listed above to the extent provided in the Servicing
Agreement.
188
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers hereunto duly authorized as of the day and year
first above written.
|
STRUCTURED
ASSET SECURITIES
CORPORATION,
as Depositor
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Name: Xxxxx X. Xxxxxxx Title:
Senior Vice President
|
||
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxxx | |
|
Name:
Xxxxxx Xxxxxxxx
Title:
Vice President
|
||
|
AURORA
LOAN SERVICES LLC, as Master
Servicer
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
|
||
|
XXXXXXX
FIXED INCOME SERVICES INC.,
as
Credit Risk Manager
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Name: Xxxxx X. Xxxxxxx Title:
President and General Counsel
|
||
Solely
for purposes of Sections 5.06(c), 5.07(f), 5.07(g),
6.11
and
11.15, accepted and agreed to by:
|
XXXXXX
BROTHERS HOLDINGS INC.
|
|||
|
By:
/s/
Xxxxxxx Xxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
|
EXHIBIT
A-1
[FORM
OF
SENIOR CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS OWNERSHIP
OF A
“REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AND A RIGHT TO RECEIVE PAYMENTS
FROM THE BASIS RISK RESERVE FUND.
THIS
CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT
GUARANTEED BY, THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR ANY AFFILIATE
OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR
PRIVATE INSURER.
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE MAY BE
MADE
IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE CERTIFICATE PRINCIPAL
AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
PRINCIPAL AMOUNT OF THIS CERTIFICATE AS SET FORTH HEREIN.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC,
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
NO
TRANSFER OF THIS CERTIFICATE PRIOR TO THE TERMINATION OF THE SWAP AGREEMENT
AND
THE INTEREST RATE CAP AGREEMENT SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE
RECEIVED A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO
THE
EFFECT THAT EITHER (I) SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN
OR
OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO SECTION 406 OF ERISA AND/OR
SECTION 4975 OF THE CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE SUCH
PLAN’S OR ARRANGEMENT’S ASSETS BY REASON OF THEIR INVESTMENT IN THE ENTITY (A
“PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
ANY SUCH PLAN TO EFFECT SUCH TRANSFER OR (II) THE ACQUISITION AND HOLDING OF
THIS CERTIFICATE ARE ELIGIBLE FOR EXEMPTIVE RELIEF UNDER THE STATUTORY EXEMPTION
FOR NONFIDUCIARY SERVICE PROVIDED UNDER SECTION 408(b)(17) OF ERISA OR SECTION
4975(d)(20) OF THE CODE OR PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00 XX XXXX 96-23. ANY PURPORTED TRANSFER
OF THIS CERTIFICATE PRIOR TO THE TERMINATION OF THE SWAP AGREEMENT AND THE
INTEREST RATE CAP AGREEMENT TO OR ON BEHALF OF A PLAN WITHOUT THE DELIVERY
TO
THE TRUSTEE OF A REPRESENTATION LETTER AS DESCRIBED ABOVE SHALL BE VOID AND
OF
NO EFFECT. IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE PRIOR TO THE DATE
OF
THE TERMINATION OF THE SWAP AGREEMENT AND THE INTEREST RATE CAP AGREEMENT,
THE
TRANSFEREE WILL BE DEEMED TO HAVE MADE A REPRESENTATION AS PROVIDED IN CLAUSE
(I) OR (II) OF THIS PARAGRAPH, AS APPLICABLE.
Exhibit
A-1-1
BNC
MORTGAGE LOAN TRUST 2007-3,
MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-3 CLASS [__]
Evidencing
a beneficial interest in two pools consisting primarily of certain conventional,
first lien, adjustable and fixed rate, fully amortizing and balloon, residential
mortgage loans and other assets in a trust fund established by:
STRUCTURED
ASSET SECURITIES CORPORATION
|
Initial
Class Principal Amount of the Class [__]
Certificates: $[__________] |
Initial
Certificate Principal Amount of this
Certificate: $[__________] |
|
|
Certificate
Interest Rate: Variable
|
Cut-off
Date: June 1, 2007
|
|
|
NUMBER
[__]
|
CUSIP:
[__________]
|
Exhibit
A-1-2
THIS
CERTIFIES THAT CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Initial Certificate
Principal Amount of this Certificate by the Initial Class Principal Amount
of
the Class [__] Certificates, both as specified above) evidencing beneficial
ownership in a Trust Fund consisting primarily of (i) certain conventional,
first lien, adjustable and fixed rate, fully amortizing and balloon, residential
mortgage loans acquired by the Trust Fund on the Closing Date (the “Mortgage
Loans”), together with all collections therefrom and proceeds thereof (excluding
all Scheduled Payments of principal and interest due on the Mortgage Loans
on or
before the Cut-off Date), (ii) any REO Property, together with all collections
thereon and proceeds thereof, (iii) the Depositor’s rights under the Mortgage
Loan Sale Agreement and the Servicing Agreement (including any security interest
created thereby), (iv) the Depositor’s rights under any Insurance Policies
related to the Mortgage Loans, (v) amounts on deposit from time to time in
the
Collection Account, the Certificate Account and the Basis Risk Reserve Fund
and
(vi) the Supplemental Interest Trust, the primary assets of which are the Swap
Agreement and the Interest Rate Cap Agreement and all proceeds
thereof.
Distributions
on this Certificate will be made on the 25th day of each month or, if such
day
is not a Business Day, then on the next succeeding Business Day, commencing
in
July 2007 (each, a “Distribution Date”), to the Person in whose name this
Certificate is registered at the close of business on the Business Day
immediately preceding such Distribution Date, so long as such Certificate is
in
book entry form (the “Record Date”), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount, if any,
required to be distributed to all the Certificates of the Class represented
by
this Certificate. All sums distributable on this Certificate are payable in
the
coin or currency of the United States of America which at the time of payment
is
legal tender for the payment of public and private debts.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which shall have the same effect as though fully set forth
on
the face of this Certificate.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, whose name appears below by manual signature, this Certificate
shall not be entitled to any benefit under the Trust Agreement or be valid
for
any purpose.
Exhibit
A-1-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED SIGNATORY |
||
|
Dated: June
___, 2007
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned Trust
Agreement.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED
SIGNATORY
|
||
|
Dated: June
___, 2007
|
||
Exhibit
X-0-0
XXXXXXX
X-0
[FORM
OF
CLASS M CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS OWNERSHIP
OF A
“REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AND A RIGHT TO RECEIVE PAYMENTS
FROM THE BASIS RISK RESERVE FUND.
THIS
CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT
GUARANTEED BY, THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR ANY AFFILIATE
OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR
PRIVATE INSURER.
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE MAY BE
MADE
IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE CERTIFICATE PRINCIPAL
AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
PRINCIPAL AMOUNT OF THIS CERTIFICATE AS SET FORTH HEREIN.
THIS
CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT AS DESCRIBED IN THE TRUST
AGREEMENT REFERRED TO HEREIN.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC,
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED IF ITS RATING IS BELOW
INVESTMENT GRADE UPON ACQUISITION UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES
THE
TRUSTEE WITH (A) A CERTIFICATION TO THE EFFECT THAT SUCH TRANSFEREE (1) IS
NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) (COLLECTIVELY, A “PLAN”), NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN
NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (2) IF SUCH TRANSFEREE IS
AN
INSURANCE COMPANY, SUCH TRANSFEREE IS PURCHASING SUCH CERTIFICATES WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” (AS SUCH TERM IS DEFINED IN
SECTION V(e) OF THE PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 (“PTCE 95-60”))
AND THE PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS
I
AND III OF PTCE 95-60; OR (B) AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE,
AND UPON WHICH THE TRUSTEE, THE MASTER SERVICER, THE SERVICER, THE DEPOSITOR
AND
ANY NIMS INSURER SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE PURCHASE
OR
HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE TRANSFEREE WILL NOT RESULT IN
ANY
NON-EXEMPT PROHIBITED TRANSACTIONS UNDER TITLE I OF ERISA OR SECTION 4975 OF
THE
CODE AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER SERVICER, THE SERVICER, THE
DEPOSITOR OR ANY NIMS INSURER TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN
BY SUCH ENTITIES IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT
BE
AN EXPENSE OF THE TRUST FUND, THE TRUSTEE, THE MASTER SERVICER, THE SERVICER,
THE DEPOSITOR OR ANY NIMS INSURER. A TRANSFEREE OF A BOOK-ENTRY CERTIFICATE
SHALL BE DEEMED TO HAVE MADE A REPRESENTATION AS REQUIRED HEREIN.
Exhibit
A-2-1
NO
TRANSFER OF THIS CERTIFICATE PRIOR TO THE TERMINATION OF THE SWAP AGREEMENT
AND
THE INTEREST RATE CAP AGREEMENT SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE
RECEIVED A REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO
THE
EFFECT THAT EITHER (I) SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN
OR
OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO SECTION 406 OF ERISA AND/OR
SECTION 4975 OF THE CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE SUCH
PLAN’S OR ARRANGEMENT’S ASSETS BY REASON OF THEIR INVESTMENT IN THE ENTITY (A
“PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
ANY SUCH PLAN TO EFFECT SUCH TRANSFER OR (II) THE ACQUISITION AND HOLDING OF
THIS CERTIFICATE ARE ELIGIBLE FOR EXEMPTIVE RELIEF UNDER THE
STATUTORY EXEMPTION FOR NONFIDUCIARY SERVICE PROVIDED UNDER SECTION 408(b)(17)
OF ERISA OR SECTION 4975(d)(20) OF THE CODE OR PROHIBITED
TRANSACTION CLASS EXEMPTION (“PTCE”) 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00,
XXXX 96-23. ANY PURPORTED TRANSFER OF THIS CERTIFICATE PRIOR TO THE TERMINATION
OF THE SWAP AGREEMENT AND THE INTEREST RATE CAP AGREEMENT TO OR ON BEHALF OF
A
PLAN WITHOUT THE DELIVERY TO THE TRUSTEE OF A REPRESENTATION LETTER AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT. IF THIS CERTIFICATE IS A BOOK-ENTRY
CERTIFICATE PRIOR TO THE DATE OF THE TERMINATION OF THE SWAP AGREEMENT AND
THE
INTEREST RATE CAP AGREEMENT, THE TRANSFEREE WILL BE DEEMED TO HAVE MADE A
REPRESENTATION AS PROVIDED IN CLAUSE (I) OR (II) OF THIS PARAGRAPH, AS
APPLICABLE.
Exhibit
A-2-2
BNC
MORTGAGE LOAN TRUST 2007-3,
MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-3 CLASS [__]
Evidencing
a beneficial interest in two pools consisting primarily of certain conventional,
first lien, adjustable and fixed rate, fully amortizing and balloon, residential
mortgage loans and other assets in a trust fund established by:
STRUCTURED
ASSET SECURITIES CORPORATION
|
Initial
Class Principal Amount of the Class [__]
Certificates: $[__________] |
Initial
Certificate Principal Amount of this
Certificate: $[__________] |
|
|
Certificate
Interest Rate: Variable
|
Cut-off
Date: June 1, 2007
|
|
|
NUMBER
[__]
|
CUSIP:
[__________]
|
Exhibit
A-2-3
THIS
CERTIFIES THAT CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Initial Certificate
Principal Amount of this Certificate by the Initial Class Principal Amount
of
the Class [__] Certificates, both as specified above) evidencing beneficial
ownership in a Trust Fund consisting primarily of (i) certain conventional,
first lien, adjustable and fixed rate, fully amortizing and balloon, residential
mortgage loans acquired by the Trust Fund on the Closing Date (the “Mortgage
Loans”), together with all collections therefrom and proceeds thereof (excluding
all Scheduled Payments of principal and interest due on the Mortgage Loans
on or
before the Cut-off Date), (ii) any REO Property, together with all collections
thereon and proceeds thereof, (iii) the Depositor’s rights under the Mortgage
Loan Sale Agreement and the Servicing Agreement (including any security interest
created thereby), (iv) the Depositor’s rights under any Insurance Policies
related to the Mortgage Loans, (v) amounts on deposit from time to time in
the
Collection Account, the Certificate Account and the Basis Risk Reserve Fund
and
(vi) the Supplemental Interest Trust, the primary assets of which are the Swap
Agreement and the Interest Rate Cap Agreement and all proceeds
thereof.
Distributions
on this Certificate will be made on the 25th day of each month or, if such
day
is not a Business Day, then on the next succeeding Business Day, commencing
in
July 2007 (each, a “Distribution Date”), to the Person in whose name this
Certificate is registered at the close of business on the Business Day
immediately preceding such Distribution Date, so long as such Certificate is
in
book entry form (the “Record Date”), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount, if any,
required to be distributed to all the Certificates of the Class represented
by
this Certificate. All sums distributable on this Certificate are payable in
the
coin or currency of the United States of America which at the time of payment
is
legal tender for the payment of public and private debts.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which shall have the same effect as though fully set forth
on
the face of this Certificate.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, whose name appears below by manual signature, this Certificate
shall not be entitled to any benefit under the Trust Agreement or be valid
for
any purpose.
Exhibit
A-2-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED
SIGNATORY
|
||
|
Dated: June
___, 2007
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned Trust
Agreement.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED
SIGNATORY
|
||
|
Dated: June
___, 2007
|
||
Exhibit
X-0-0
XXXXXXX
X-0
[FORM
OF
CLASS B CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS OWNERSHIP
OF A
“REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AND A RIGHT TO RECEIVE PAYMENTS
FROM THE BASIS RISK RESERVE FUND.
THIS
CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT
GUARANTEED BY, THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR ANY AFFILIATE
OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR
PRIVATE INSURER.
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL AMOUNT OF THIS CERTIFICATE MAY BE
MADE
IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE CERTIFICATE PRINCIPAL
AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
PRINCIPAL AMOUNT OF THIS CERTIFICATE AS SET FORTH HEREIN.
THIS
CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT AS DESCRIBED IN THE TRUST
AGREEMENT REFERRED TO HEREIN.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC,
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE “1933 ACT”) OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH
REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
[With
respect to the Class B Rule 144A Certificate Only:] THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT IT ACQUIRED SUCH CERTIFICATE (A) PURSUANT TO
A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT
OR
(B) AS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE 1933
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN
RELIANCE ON RULE 144A.
Exhibit
A-3-1
[With
respect to the Class B Regulation S Certificate Only:] THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT (A) UNTIL THE EXPIRATION OF THE APPLICABLE
“DISTRIBUTION COMPLIANCE PERIOD” WITHIN THE MEANING OF REGULATION S, ANY OFFER,
SALE, PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE SHALL NOT BE MADE IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON (EACH
AS
DEFINED IN REGULATION S) AND (B) IF THIS CERTIFICATE IS HELD WITHIN THE UNITED
STATES OR SUCH HOLDER IS A U.S. PERSON OR THIS CERTIFICATES IS HELD FOR THE
ACCOUNT OR BENEFIT OF, A U.S. PERSON (EACH AS DEFINED IN REGULATION S) SUCH
CERTIFICATE WAS ACQUIRED ONLY (1) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS
BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT OR (2) BY SUCH HOLDER AS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED IF ITS RATING IS BELOW
INVESTMENT GRADE UPON ACQUISITION UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES
THE
TRUSTEE WITH (A) A CERTIFICATION TO THE EFFECT THAT SUCH TRANSFEREE (1) IS
NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) (COLLECTIVELY, A “PLAN”), NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN
NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR (2) IF THE CERTIFICATE HAS
BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING AND TRANSFEREE IS AN
INSURANCE COMPANY, SUCH TRANSFEREE IS PURCHASING SUCH CERTIFICATES WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” (AS SUCH TERM IS DEFINED IN
SECTION V(e) OF THE PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 (“PTCE 95-60”))
AND THE PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE COVERED UNDER SECTIONS
I
AND III OF PTCE 95-60; OR (B) AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE,
AND UPON WHICH THE TRUSTEE, THE MASTER SERVICER, THE SERVICER, THE DEPOSITOR
AND
ANY NIMS INSURER SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE PURCHASE
OR
HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE TRANSFEREE WILL NOT RESULT IN
ANY
NON-EXEMPT PROHIBITED TRANSACTIONS UNDER TITLE I OF ERISA OR SECTION 4975 OF
THE
CODE AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER SERVICER, THE SERVICER, THE
DEPOSITOR OR ANY NIMS INSURER TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN
BY SUCH ENTITIES IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT
BE
AN EXPENSE OF THE TRUST FUND, THE TRUSTEE, THE MASTER SERVICER, THE SERVICER,
THE DEPOSITOR OR ANY NIMS INSURER. A TRANSFEREE OF A BOOK-ENTRY CERTIFICATE
SHALL BE DEEMED TO HAVE MADE A REPRESENTATION AS REQUIRED HEREIN.
Exhibit
A-3-2
BNC
MORTGAGE LOAN TRUST 2007-3,
MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-3 CLASS [__]
([RULE
144A/REGULATION S])
Evidencing
a beneficial interest in two pools consisting primarily of certain conventional,
first lien, adjustable and fixed rate, fully amortizing and balloon, residential
mortgage loans and other assets in a trust fund established by:
STRUCTURED
ASSET SECURITIES CORPORATION
|
Initial
Class Principal Amount of the Class [__]
Certificates: $[__________] |
Initial
Certificate Principal Amount of this
Certificate: $[__________] |
|
|
Certificate
Interest Rate: Variable
|
Cut-off
Date: June 1, 2007
|
|
|
NUMBER
[__]
|
CUSIP:
[ISIN:] [____________]
[____________]
|
Exhibit
A-3-3
THIS
CERTIFIES THAT CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Initial Certificate
Principal Amount of this Certificate by the Initial Class Principal Amount
of
the Class [__] Certificates, both as specified above) evidencing beneficial
ownership in a Trust Fund consisting primarily of (i) certain conventional,
first lien, adjustable and fixed rate, fully amortizing and balloon, residential
mortgage loans acquired by the Trust Fund on the Closing Date (the “Mortgage
Loans”), together with all collections therefrom and proceeds thereof (excluding
all Scheduled Payments of principal and interest due on the Mortgage Loans
on or
before the Cut-off Date), (ii) any REO Property, together with all collections
thereon and proceeds thereof, (iii) the Depositor’s rights under the Mortgage
Loan Sale Agreement and the Servicing Agreement (including any security interest
created thereby), (iv) the Depositor’s rights under any Insurance Policies
related to the Mortgage Loans, (v) amounts on deposit from time to time in
the
Collection Account, the Certificate Account and the Basis Risk Reserve Fund
and
(vi) the Supplemental Interest Trust, the primary assets of which are the Swap
Agreement and the Interest Rate Cap Agreement and all proceeds
thereof.
Distributions
on this Certificate will be made on the 25th day of each month or, if such
day
is not a Business Day, then on the next succeeding Business Day, commencing
in
July 2007 (each, a “Distribution Date”), to the Person in whose name this
Certificate is registered at the close of business on the Business Day
immediately preceding such Distribution Date, so long as such Certificate is
in
book entry form (the “Record Date”), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount, if any,
required to be distributed to all the Certificates of the Class represented
by
this Certificate. All sums distributable on this Certificate are payable in
the
coin or currency of the United States of America which at the time of payment
is
legal tender for the payment of public and private debts.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which shall have the same effect as though fully set forth
on
the face of this Certificate.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, whose name appears below by manual signature, this Certificate
shall not be entitled to any benefit under the Trust Agreement or be valid
for
any purpose.
Exhibit
A-3-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED
SIGNATORY
|
||
|
Dated: June
___, 2007
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned Trust
Agreement.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED
SIGNATORY
|
||
|
Dated: June
___, 2007
|
||
Exhibit
X-0-0
XXXXXXX
X-0
[FORM
OF
CLASS P CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS OWNERSHIP
OF A
“REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).
THIS
CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT
GUARANTEED BY, THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR ANY AFFILIATE
OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR
PRIVATE INSURER.
THIS
CERTIFICATE IS NOT ENTITLED TO SCHEDULED DISTRIBUTIONS OF PRINCIPAL AND WILL
NOT
ACCRUE INTEREST. THE HOLDER OF THIS CERTIFICATE WILL BE ENTITLED TO CERTAIN
DISTRIBUTIONS AS PROVIDED IN THE TRUST AGREEMENT. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A NEW
YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE “1933 ACT”) OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH
REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT OR (B) TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN
RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO THE TRUSTEE’S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE TRUST
AGREEMENT.
Exhibit
A-4-1
NO
TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUSTEE WITH (A) A CERTIFICATION TO THE EFFECT THAT
SUCH
TRANSFEREE (1) IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE “CODE”), (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING
ON BEHALF OF ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR
(2)
IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING
AND
THE TRANSFEREE IS AN INSURANCE COMPANY, SUCH TRANSFEREE IS PURCHASING SUCH
CERTIFICATE WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” (AS
SUCH TERM IS DEFINED IN SECTION V(e) OF THE PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 (“PTCE 95-60”)) AND THE PURCHASE AND HOLDING OF SUCH CERTIFICATE
ARE COVERED UNDER SECTIONS I AND III OF PTCE 95-60; OR (B) AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, AND UPON WHICH THE TRUSTEE, THE MASTER SERVICER,
THE SERVICER, THE DEPOSITOR AND ANY NIMS INSURER SHALL BE ENTITLED TO RELY,
TO
THE EFFECT THAT THE PURCHASE OR HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE
TRANSFEREE WILL NOT RESULT IN ANY NON-EXEMPT PROHIBITED TRANSACTIONS UNDER
TITLE
I OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE
MASTER SERVICER, THE SERVICER, THE DEPOSITOR OR ANY NIMS INSURER TO ANY
OBLIGATION IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE TRUST
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUST FUND,
THE TRUSTEE, THE MASTER SERVICER, THE SERVICER, THE DEPOSITOR OR ANY NIMS
INSURER. A TRANSFEREE OF A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO HAVE MADE
A
REPRESENTATION AS REQUIRED HEREIN.
Exhibit
A-4-2
BNC
MORTGAGE LOAN TRUST 2007-3,
MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-3 CLASS P
Evidencing
a beneficial interest in two pools consisting primarily of certain conventional,
first lien, adjustable and fixed rate, fully amortizing and balloon, residential
mortgage loans and other assets in a trust fund established by:
STRUCTURED
ASSET SECURITIES CORPORATION
|
Percentage
Interest: 100%
|
Cut-off
Date: June 1, 2007
|
|
|
NUMBER
[__]
|
CUSIP:
[ISIN:] [____________]
[____________]
|
Exhibit
A-4-3
THIS
CERTIFIES THAT CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate evidencing a beneficial ownership in certain
distributions of Prepayment Premiums (as defined in the Trust Agreement) made
in
respect of certain conventional, first lien, adjustable and fixed rate, fully
amortizing and balloon, residential mortgage loans (the “Mortgage Loans”)
acquired from Structured Asset Securities Corporation (the “Depositor”), a
Delaware corporation, on the Closing Date which from time to time may be held
in
the Trust Fund established pursuant to the Trust Agreement (as defined on the
reverse hereof).
Distributions
on this Certificate will be made on the 25th day of each month or, if such
day
is not a Business Day, then on the next succeeding Business Day, commencing
in
July 2007 (each, a “Distribution Date”), to the Person in whose name this
Certificate is registered at the close of business on the Business Day
immediately preceding such Distribution Date, so long as such Certificate is
in
book entry form (the “Record Date”), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount, if any,
required to be distributed to all the Certificates of the Class represented
by
this Certificate. All sums distributable on this Certificate are payable in
the
coin or currency of the United States of America which at the time of payment
is
legal tender for the payment of public and private debts.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which shall have the same effect as though fully set forth
on
the face of this Certificate.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, whose name appears below by manual signature, this Certificate
shall not be entitled to any benefit under the Trust Agreement or be valid
for
any purpose.
Exhibit
A-4-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED
SIGNATORY
|
||
|
Dated: June
___, 2007
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned Trust
Agreement.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED
SIGNATORY
|
||
|
Dated: June
___, 2007
|
||
Exhibit
X-0-0
XXXXXXX
X-0
[FORM
OF
CLASS X CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS OWNERSHIP
OF A
“REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AND A RIGHT TO RECEIVE PAYMENTS
FROM THE BASIS RISK RESERVE FUND.
THIS
CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT
GUARANTEED BY, THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR ANY AFFILIATE
OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR
PRIVATE INSURER.
THIS
CERTIFICATE IS NOT ENTITLED TO SCHEDULED DISTRIBUTIONS OF PRINCIPAL AND WILL
NOT
ACCRUE INTEREST. THE HOLDER OF THIS CERTIFICATE WILL BE ENTITLED TO CERTAIN
DISTRIBUTIONS AS PROVIDED IN THE TRUST AGREEMENT.
THIS
CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT AS DESCRIBED IN THE TRUST
AGREEMENT REFERRED TO HEREIN.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC,
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE “1933 ACT”) OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH
REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) TO A PERSON
IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, OR (C) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501
UNDER THE 1933 ACT THAT IS ACQUIRING THE CERTIFICATE FOR ITS OWN ACCOUNT, OR
FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE 1933 ACT, SUBJECT TO THE TRUSTEE’S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE
OF
TRANSFER IN THE FORM APPEARING IN THE TRUST AGREEMENT.
Exhibit
A-5-1
NO
TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUSTEE WITH (A) A CERTIFICATION TO THE EFFECT THAT
SUCH
TRANSFEREE (1) IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE “CODE”), (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING
ON BEHALF OF ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR
(2)
IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING
AND
THE TRANSFEREE IS AN INSURANCE COMPANY, SUCH TRANSFEREE IS PURCHASING SUCH
CERTIFICATE WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” (AS
SUCH TERM IS DEFINED IN SECTION V(e) OF THE PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 (“PTCE 95-60”)) AND THE PURCHASE AND HOLDING OF SUCH CERTIFICATE
ARE COVERED UNDER SECTIONS I AND III OF PTCE 95-60; OR (B) AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, AND UPON WHICH THE TRUSTEE, THE MASTER SERVICER,
THE SERVICER, THE DEPOSITOR AND ANY NIMS INSURER SHALL BE ENTITLED TO RELY,
TO
THE EFFECT THAT THE PURCHASE OR HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE
TRANSFEREE WILL NOT RESULT IN ANY NON-EXEMPT PROHIBITED TRANSACTIONS UNDER
TITLE
I OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE
MASTER SERVICER, THE SERVICER, THE DEPOSITOR OR ANY NIMS INSURER TO ANY
OBLIGATION IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE TRUST
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUST FUND,
THE TRUSTEE, THE MASTER SERVICER, THE SERVICER, THE DEPOSITOR OR ANY NIMS
INSURER. A TRANSFEREE OF A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO HAVE MADE
A
REPRESENTATION AS REQUIRED HEREIN.
Exhibit
A-5-2
BNC
MORTGAGE LOAN TRUST 2007-3,
MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-3 CLASS X
Evidencing
a beneficial interest in two pools consisting primarily of certain conventional,
first lien, adjustable and fixed rate, fully amortizing and balloon, residential
mortgage loans and other assets in a trust fund established by:
STRUCTURED
ASSET SECURITIES CORPORATION
|
Percentage
Interest: 100%
|
Cut-off
Date: June 1, 2007
|
|
|
NUMBER
[__]
|
CUSIP:
[ISIN:] [____________]
[____________]
|
Exhibit
A-5-3
THIS
CERTIFIES THAT CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate evidencing beneficial ownership in a Trust Fund
consisting primarily of (i) certain conventional, first lien, adjustable and
fixed rate, fully amortizing and balloon, residential mortgage loans acquired
by
the Trust Fund on the Closing Date (the “Mortgage Loans”), together with all
collections therefrom and proceeds thereof (excluding all scheduled payments
of
principal and interest due on the Mortgage Loans on or before the Cut-off Date),
(ii) any REO Property, together with all collections thereon and proceeds
thereof, (iii) the Depositor’s rights under the Mortgage Loan Sale Agreement and
the Servicing Agreement (including any security interest created thereby),
(iv)
the Depositor’s rights under any Insurance Policies related to the Mortgage
Loans, (v) amounts on deposit from time to time in the Collection Account,
the
Certificate Account and the Basis Risk Reserve Fund and (vi) the Supplemental
Interest Trust, the primary assets of which are the Swap Agreement and the
Interest Rate Cap Agreement and all proceeds thereof.
Distributions
on this Certificate will be made on the 25th day of each month or, if such
day
is not a Business Day, then on the next succeeding Business Day, commencing
in
July 2007 (each, a “Distribution Date”), to the Person in whose name this
Certificate is registered at the close of business on the Business Day
immediately preceding such Distribution Date, so long as such Certificate is
in
book entry form (the “Record Date”), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount, if any,
required to be distributed to all the Certificates of the Class represented
by
this Certificate. All sums distributable on this Certificate are payable in
the
coin or currency of the United States of America which at the time of payment
is
legal tender for the payment of public and private debts.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which shall have the same effect as though fully set forth
on
the face of this Certificate.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, whose name appears below by manual signature, this Certificate
shall not be entitled to any benefit under the Trust Agreement or be valid
for
any purpose.
Exhibit
A-5-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED
SIGNATORY
|
||
|
Dated: June
___, 2007
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned Trust
Agreement.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED
SIGNATORY
|
||
|
Dated: June
___, 2007
|
||
Exhibit
X-0-0
XXXXXXX
X-0
[FORM
OF
RESIDUAL CERTIFICATE]
THIS
CERTIFICATE IS A REMIC RESIDUAL INTEREST CERTIFICATE. THIS CERTIFICATE DOES
NOT
EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE
DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR ANY AFFILIATE OF ANY OF THEM
AND
IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY.
THIS
CERTIFICATE IS NOT ENTITLED TO DISTRIBUTIONS OF PRINCIPAL AND WILL NOT ACCRUE
INTEREST. THE HOLDER OF THIS CERTIFICATE WILL BE ENTITLED ONLY TO CERTAIN
LIMITED DISTRIBUTIONS AS PROVIDED IN THE TRUST AGREEMENT.
THIS
CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT AS DESCRIBED IN THE TRUST
AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “1933 ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION, UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) TO A PERSON
IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, OR (C) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT, SUBJECT TO THE
TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE
DELIVERY OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE TRUST
AGREEMENT.
NEITHER
THIS CERTIFICATE, NOR ANY BENEFICIAL INTEREST IN THIS CERTIFICATE, MAY BE
TRANSFERRED, SOLD, PLEDGED, OR OTHERWISE DISPOSED OF UNLESS PRIOR TO SUCH
DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE (I) AN AFFIDAVIT
STATING (A) THAT THE PROPOSED TRANSFEREE 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 IS NOT PURCHASING THE CERTIFICATE ON BEHALF OF A
DISQUALIFIED ORGANIZATION, (B) THAT NO PURPOSE OF SUCH TRANSFER IS TO AVOID
OR
IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, (C) IN THE CASE OF A NON-U.S.
PERSON, THAT THE PROPOSED TRANSFEREE 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 4224 OR SUCCESSOR FORM AT THE TIME AND IN THE
MANNER REQUIRED BY THE CODE.
Exhibit
A-6-1
NO
TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUSTEE WITH (A) A CERTIFICATION TO THE EFFECT THAT
SUCH
TRANSFEREE (1) IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE “CODE”), (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING
ON BEHALF OF ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN OR
(2)
IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING
AND
THE TRANSFEREE IS AN INSURANCE COMPANY, SUCH TRANSFEREE IS PURCHASING SUCH
CERTIFICATE WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” (AS
SUCH TERM IS DEFINED IN SECTION V(e) OF THE PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 (“PTCE 95-60”)) AND THE PURCHASE AND HOLDING OF SUCH CERTIFICATE
ARE COVERED UNDER SECTIONS I AND III OF PTCE 95-60; OR (B) AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, AND UPON WHICH THE TRUSTEE, THE MASTER SERVICER,
THE SERVICER, THE DEPOSITOR AND ANY NIMS INSURER SHALL BE ENTITLED TO RELY,
TO
THE EFFECT THAT THE PURCHASE OR HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE
TRANSFEREE WILL NOT RESULT IN ANY NON-EXEMPT PROHIBITED TRANSACTIONS UNDER
TITLE
I OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE
MASTER SERVICER, THE SERVICER, THE DEPOSITOR OR ANY NIMS INSURER TO ANY
OBLIGATION IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE TRUST
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUST FUND,
THE TRUSTEE, THE MASTER SERVICER, THE SERVICER, THE DEPOSITOR OR ANY NIMS
INSURER.
Exhibit
A-6-2
BNC
MORTGAGE LOAN TRUST 2007-3,
MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-3 CLASS [__]
Evidencing
a beneficial interest in two pools consisting primarily of certain conventional,
first lien, adjustable and fixed rate, fully amortizing and balloon, residential
mortgage loans and other assets in a trust fund established by:
STRUCTURED
ASSET SECURITIES CORPORATION
|
Percentage
Interest: 100%
|
Cut-off
Date: June 1, 2007
|
|
|
NUMBER
[__]
|
Exhibit
A-6-3
THIS
CERTIFIES THAT TFINN & CO. (on behalf of Xxxxxx Pass-Through Securities
Inc.) is the registered owner of the Percentage Interest evidenced by this
Certificate evidencing beneficial ownership in a Trust Fund consisting primarily
of (i) certain conventional, first lien, adjustable and fixed rate, fully
amortizing and balloon, residential mortgage loans acquired by the Trust Fund
on
the Closing Date (the “Mortgage Loans”), together with all collections therefrom
and proceeds thereof (excluding all Scheduled Payments of principal and interest
due on the Mortgage Loans on or before the Cut-off Date), (ii) any REO Property,
together with all collections thereon and proceeds thereof, (iii) the
Depositor’s rights under the Mortgage Loan Sale Agreement and the Servicing
Agreement (including any security interest created thereby), (iv) the
Depositor’s rights under any Insurance Policies related to the Mortgage Loans,
(v) amounts on deposit from time to time in the Collection Account, the
Certificate Account and the Basis Risk Reserve Fund and (vi) the Supplemental
Interest Trust, the primary assets of which are the Swap Agreement and the
Interest Rate Cap Agreement and all proceeds thereof.
Distributions
on this Certificate will be made on the 25th day of each month or, if such
day
is not a Business Day, then on the next succeeding Business Day, commencing
in
July 2007 (each, a “Distribution Date”), to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of
the calendar immediately preceding the month in which such Distribution Date
occurs (or, in the case of the first Distribution Date, the Closing Date) (the
“Record Date”), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount, if any, required to be distributed
to all the Certificates of the Class represented by this Certificate. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America which at the time of payment is legal tender for the
payment of public and private debts.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which shall have the same effect as though fully set forth
on
the face of this Certificate.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, whose name appears below by manual signature, this Certificate
shall not be entitled to any benefit under the Trust Agreement or be valid
for
any purpose.
Exhibit
A-6-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED
SIGNATORY
|
||
|
Dated: June
___, 2007
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned Trust
Agreement.
|
CITIBANK,
N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
AUTHORIZED
SIGNATORY
|
||
|
Dated: June
___, 2007
|
||
Exhibit
X-0-0
XXXXXXX
X-0
[FORM
OF
REVERSE OF CERTIFICATE]
BNC
MORTGAGE LOAN TRUST 2007-3
MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-3
This
Certificate is one of a duly authorized issue of certificates designated as
BNC
Mortgage Loan Trust 2007-3 Mortgage Pass-Through Certificates, Series 2007-3
(the “Certificates”), representing all or part of a beneficial ownership
interest in (a) the Trust Fund and (b) the Supplemental Interest Trust, each
established pursuant to the Trust Agreement dated as of June 1, 2007 (the “Trust
Agreement”), among Structured Asset Securities Corporation, as Depositor, Aurora
Loan Services LLC, as Master Servicer, Citibank, N.A., as Trustee, and Xxxxxxx
Fixed Income Services Inc., as Credit Risk Manager, to which terms, provisions
and conditions thereof the Holder of this Certificate by virtue of the
acceptance hereof assents, and by which such Holder is bound. The Certificates
consist of the following Classes: the Class A1, Class A2, Class A3, Class A4,
Class A5, Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class
M7,
Class M8, Class M9, Class B1, Class B2, Class P, Class X, Class R and Class
LT-R
Certificates.
On
each
Distribution Date, the Total Distribution Amount for such date will be
distributed from the Certificate Account to Holders of the Certificates
according to the terms of the Trust Agreement. All distributions or allocations
made with respect to each Class of Certificates on each Distribution Date shall
be allocated among the outstanding Certificates of such Class based on the
Certificate Principal Amount (or Percentage Interest) of each such
Certificate.
Distributions
on this Certificate will be made by wire transfer in immediately available
funds
to the Holder of record of this Certificate on the immediately preceding Record
Date to an account specified in writing by such Holder to the Trustee at least
five (5) Business Days prior to the first Distribution Date to such Holder.
Wire
transfers will be made at the expense of the Holder requesting the same by
deducting a wire transfer fee from the related distribution. The final
distribution on this Certificate will be made, after due notice to the Holder
of
the pendency of such distribution, only upon presentation and surrender of
this
Certificate at the Corporate Trust Office (as defined below).
The
Corporate Trust Office with respect to the presentment and surrender of
Certificates for the final distribution thereon and the presentment and
surrender of the Certificates for any other purpose is the corporate trust
office of the Trustee at Citibank, N.A., 000 Xxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: 15th
Floor
Window. The Trustee may designate another address from time to time by notice
to
the Holders of the Certificates and the Depositor. The Trustee has executed
this
Certificate solely in its capacity as Trustee under the Trust Agreement and
not
individually, and the Trustee shall be liable hereunder only in respect of
the
assets of the Trust Fund.
Exhibit
A-7-1
The
Trust
Agreement permits the amendment thereof from time to time by the Depositor,
the
Master Servicer and the Trustee with the consent of the Holders of not less
than
66 2/3% of the Class Principal Amount (or Percentage Interest) of each Class
of
Certificates affected thereby and with the consent of any NIMS Insurer, for
the
purpose of adding, changing or eliminating any provisions of the Trust Agreement
or modifying the rights of the Holders of the Certificates thereunder, as
provided in the Trust Agreement. Any consent by the Holder of this Certificate
will be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or
in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, with the prior written consent of
any
NIMS Insurer (and, in certain cases, the Swap Counterparty) but without the
consent of the Holders of any of the Certificates.
As
provided in the Trust Agreement and subject to certain limitations therein
set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the
Corporate Trust Office, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Certificate Registrar, duly executed
by
the Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class of authorized
denominations evidencing the same initial Certificate Principal Amount (or
Percentage Interest) will be issued to the designated transferee or transferees.
As provided in the Trust Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class evidencing the same aggregate initial Certificate Principal Amount (or
Percentage Interest) as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange,
but the Certificate Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection
therewith.
The
Class
A1, Class A2, Class A3, Class A4 and Class A5 Certificates are issuable only
in
registered form, in minimum denominations of $25,000 in initial Certificate
Principal Amount and in integral multiples of $1 in excess thereof registered
in
the name of the nominee of the Clearing Agency, which shall maintain such
Certificates through its book-entry facilities. The Class M1, Class M2, Class
M3, Class M4, Class M5, Class M6, Class M7, Class M8, Class M9, Class B1 and
Class B2 Certificates are issuable only in registered form, in denominations
of
$100,000 and in integral multiples of $1 in excess thereof registered in the
name of the nominee of the Clearing Agency, which shall maintain such
Certificates through its book-entry facilities. Each of the Class P and Class
X
Certificates are issuable in minimum denominations of 5% Percentage Interest
and
will be maintained in physical form. The Class LT-R and Class R Certificates
will each be issued as a single Certificate and maintained in physical form.
The
Class R Certificates shall remain outstanding until the latest final
Distribution Date for the Certificates (other than the Class LT-R Certificates),
and the Class LT-R Certificates shall remain outstanding until the termination
of the Trust Fund.
The
Certificates are subject to optional prepayment in full in accordance with
the
Trust Agreement on any Distribution Date after the date on which the Aggregate
Pool Balance is less than 10% of the sum of the Cut-off Date Balance, for an
amount as specified in the Trust Agreement. In no event will any trust created
by the Trust Agreement continue beyond the expiration of 21 years from the
death
of the last survivor of the descendants living at the date of the Trust
Agreement of a certain person named in the Trust Agreement.
Exhibit
A-7-2
The
Depositor, the Master Servicer, the Trustee, the Certificate Registrar, any
NIMS
Insurer and any agent of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar, any
NIMS
Insurer or any such agent shall be affected by any notice to the
contrary.
As
provided in the Trust Agreement, this Certificate and the Trust Agreement shall
be construed in accordance with and governed by the laws of the State of New
York, without regard to the conflict of laws principles applied in the State
of
New York. In the event of any conflict between the provisions of this
Certificate and the Trust Agreement, the Trust Agreement shall be controlling.
Any term used herein and not otherwise defined shall be as defined in the Trust
Agreement.
Exhibit
A-7-3
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s) and assign(s) and transfer(s)
unto
(Please
print or type name and address, including postal zip code, of assignee and
social security number or employer identification number)
the
within Certificate stating in the names of the undersigned in the Certificate
Register and does hereby irrevocably constitute and appoint
to
transfer such Certificate in such Certificate Register of the
Trust.
I
[we]
further direct the Certificate Registrar to issue a new Certificate of the
same
Class of like principal to the above-named assignee and deliver such Certificate
to the following address:
|
Dated:
|
Signature
by or on behalf of Assignor
|
|
|
Authorized
Officer
|
Signature Guaranteed | |
|
Name
of Institution
|
NOTICE:
The signature(s) of this assignment must correspond with the name(s)
on
the face of this Certificate without alteration or any change whatsoever.
The signature must be guaranteed by a participant in the Securities
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Signature Program or the Stock Exchanges Medallion Program. Notarized
or
witnessed signatures are not acceptable as guaranteed
signatures.
|
Exhibit
A-7-4
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Certificate
Registrar. Distributions shall be made by wire transfer in immediately available
funds to
for
the
account of
______________________________________________________________________________________
account
number __________________ or, if mailed by check, to
________________________________________________
Applicable
reports and statements should be mailed to
________________________________________________________
This
information is provided by
___________________________________________________________________,
the
assignee named above, or ____________________________________ as its agent.
Exhibit
X-0-0
XXXXXXX
X-0
FORM
OF
INITIAL CERTIFICATION
|
|
|||
|
Date
|
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Agency and Trust BNC 2007-3
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICER]
| Re: |
Trust
Agreement dated as of June 1, 2007 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, Citibank,
N.A., as
Trustee, Aurora Loan Services LLC, as Master Servicer, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager with respect to BNC
Mortgage
Loan Trust 2007-3
Mortgage Pass-Through Certificates, Series 2007-3
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Trust Agreement, subject to review of
the
contents thereof, the undersigned, as the 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]
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Exhibit
B-1
EXHIBIT
B-2
FORM
OF
INTERIM CERTIFICATION
|
|
|||
|
Date
|
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Agency and Trust BNC 2007-3
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICER]
| Re: |
Trust
Agreement dated as of June 1, 2007 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, Citibank,
N.A., as
Trustee, Aurora Loan Services LLC, as Master Servicer, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager with respect to BNC
Mortgage
Loan Trust
2007-3 Mortgage Pass-Through Certificates, Series 2007-3
|
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 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]
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Exhibit
B-2
EXHIBIT
B-3
FORM
OF
FINAL CERTIFICATION
|
Date
|
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Agency and Trust BNC 2007-3
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICER]
| Re: |
Trust
Agreement dated as of June 1, 2007 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, Citibank,
as
Trustee, Aurora Loan Services LLC, as Master Servicer, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager with respect to BNC
Mortgage
Loan Trust
2007-3 Mortgage Pass-Through Certificates, Series 2007-3
|
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 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 definition of Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement.
|
[Custodian]
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Exhibit
B-3
EXHIBIT
B-4
FORM
OF
ENDORSEMENT
Pay
to
the order of Citibank, N.A., as Trustee (the “Trustee”) under the Trust
Agreement dated as of June 1, 2007 by and among Structured Asset Securities
Corporation, as Depositor, the Trustee, Aurora Loan Services LLC, as Master
Servicer, and Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager
relating to BNC Mortgage Loan Trust 2007-3 Mortgage Pass-Through Certificates,
Series 2007-3, without recourse.
|
[current
signatory on note]
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Exhibit
B-4
EXHIBIT
C
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
|
Date
|
[Addressed
to Trustee
or,
if
applicable, the Custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Trust Agreement dated as of June 1, 2007 by and among Structured
Asset
Securities Corporation, as Depositor, you, as Trustee, Aurora Loan Services
LLC,
as Master Servicer, and Xxxxxxx Fixed Income Services Inc., as Credit Risk
Manager, (the “Trust Agreement”), the undersigned [Servicer] [Master Servicer]
hereby requests a release of the Mortgage File held by you as Trustee with
respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The 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] [Master Servicer] hereby certifies that the
Purchase Price or FPD Purchase Price (in the case of a First Payment Default
Mortgage Loan or a Delinquency Default Mortgage Loan) has been credited to
the
Certificate Account or Collection Account, as applicable, pursuant to the Trust
Agreement.)
Exhibit
C-1
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).
Capitalized
terms used herein shall have the meanings ascribed to them in the Trust
Agreement.
|
[Name of Servicer] |
||
| |
|
|
| By: | ||
|
Name:
Title:
Servicing Officer
|
||
Exhibit
C-2
EXHIBIT
D-1
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
| STATE OF | ) |
| ) ss.: | |
| COUNTY OF | ) |
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
|
1.
|
That
he [she] is [title of officer] ________________________ of [name
of
Purchaser] _________________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly organized
and
existing under the laws of the [State of __________] [United States],
on
behalf of which he [she] makes this
affidavit.
|
|
2.
|
That
the Purchaser’s Taxpayer Identification Number is
.
|
|
3.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the
“Code”) and will not be a “disqualified organization” as of [date of
transfer], and that the Purchaser is not acquiring a Residual Certificate
(as defined in the Agreement) for the account of, or as agent (including
a
broker, nominee, or other middleman) for, any person or entity from
which
it has not received an affidavit substantially in the form of this
affidavit. For these purposes, a “disqualified organization” means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality
of any of the foregoing (other than an instrumentality if all of
its
activities are subject to tax and a majority of its board of directors
is
not selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons
in
rural areas as described in Code Section 1381(a)(2)(C), any “electing
large partnership” within the meaning of Section 775 of the Code, or any
organization (other than a farmers’ cooperative described in Code Section
521) that is exempt from federal income tax unless such organization
is
subject to the tax on unrelated business income imposed by Code Section
511.
|
|
4.
|
That
the Purchaser either (x) is not, and on __________________ [date
of
transfer] will not be, an employee benefit plan or other retirement
arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Code,
(collectively, a “Plan”) or a person acting on behalf of any such Plan or
investing the assets of any such Plan to acquire a Residual Certificate;
(y) if the Residual Certificate has been the subject of an
ERISA-Qualifying Underwriting, is an insurance company that is purchasing
the Residual Certificate with funds contained in an “insurance company
general account” as defined in Section V(e) of Prohibited Transaction
Class Exemption (“PTCE”) 95-60 and the purchase and holding of the
Residual Certificate are covered under Sections I and III of PTCE
95-60;
or (z) herewith delivers to the Trustee an opinion of counsel (a
“Benefit
Plan Opinion”) satisfactory to the Trustee, and upon which the Trustee,
the Master Servicer, the Servicer, the Depositor and any NIMS Insurer
shall be entitled to rely, to the effect that the purchase or holding
of
such Residual Certificate by the Investor will not result in any
non-exempt prohibited transactions under Title I of ERISA or Section
4975
of the Code and will not subject the Trustee, the Depositor, the
Master
Servicer, the Servicer or any NIMS Insurer to any obligation in addition
to those undertaken by such entities in the Trust Agreement, which
opinion
of counsel shall not be an expense of the Trust Fund or any of the
above
parties.
|
Exhibit
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, Citibank, N.A., as Trustee, Aurora Loan
Services LLC, as Master Servicer, and Xxxxxxx Fixed Income Services
Inc.,
as Credit Risk Manager, dated as of June 1, 2007, no transfer of
the
Residual Certificate 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.
|
|
6.
|
That
the Purchaser does not hold REMIC residual securities as nominee
to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a “Book-Entry
Nominee”).
|
|
7.
|
That
the Purchaser does not have the intention to impede the assessment
or
collection of any federal, state or local taxes legally required
to be
paid with respect to such Residual
Certificate.
|
|
8.
|
That
the Purchaser will not transfer a Residual Certificate to any person
or
entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10
hereof
are not satisfied or that the Purchaser has reason to believe does
not
satisfy the requirements set forth in paragraph 7 hereof, and (ii)
without
obtaining from the prospective Purchaser an affidavit substantially
in
this form and providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the
Agreement.
|
|
9.
|
That
the Purchaser understands that, as the holder of a Residual Certificate,
the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated
with
holding such Residual Certificate as they become
due.
|
|
10.
|
That
the Purchaser (i) is 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 resident of the United
States;
(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.
|
Exhibit
D-1-2
|
11.
|
That
the Purchaser agrees to such amendments of the Trust Agreement as
may be
required to further effectuate the restrictions on transfer of any
Residual Certificate to such a “disqualified organization,” an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy
the
requirements of paragraph 7 and paragraph 10
hereof.
|
|
12.
|
That
the Purchaser consents to the designation of the Trustee as its agent
to
act as “tax matters person” of the Trust Fund pursuant to the Trust
Agreement.
|
Exhibit
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__.
|
[Name
of Purchaser]
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Personally
appeared before me the above-named [name of officer] ________________, known
or
proved to me to be the same person who executed the foregoing instrument and
to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________, 20__.
NOTARY
PUBLIC
______________________________
COUNTY
OF_____________________
STATE
OF______________________
My
commission expires the _____ day of __________, 20__.
Exhibit
X-0-0
XXXXXXX
X-0
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
|
Date
|
|||
| Re: |
BNC
Mortgage Loan Trust 2007-3
Mortgage
Pass-Through Certificates, Series
2007-3
|
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
|
Very
truly yours,
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Exhibit
D-2
EXHIBIT
E
DESCRIPTION
OF SERVICING AGREEMENT
|
1.
|
Securitization
Servicing Agreement dated as of June 1, 2007, by and among LBH, as
seller,
JPMorgan Chase Bank, National Association, as servicer, and the Master
Servicer.
|
Exhibit
E
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
| Re: |
BNC
Mortgage Loan Trust 2007-3 Mortgage
Pass-Through Certificates, Series
2007-3
|
Reference
is hereby made to the Trust Agreement dated as of June 1, 2007 (the “Trust
Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
Citibank, N.A., as Trustee, Aurora Loan Services LLC, as Master Servicer, and
Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager. 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 Securities Act to a purchaser
that the Transferor reasonably believes is a “qualified institutional buyer”
within the meaning of Rule 144A purchasing for its own account or for the
account of a “qualified institutional buyer,” which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Depositor.
|
[Name
of Transferor]
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Dated:
___________, ____
Exhibit
F
EXHIBIT
G
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTORS
|
__________________
|
||
|
Date
|
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount of
BNC
Mortgage Loan Trust 2007-3 Mortgage Pass-Through Certificates, Series 2007-3,
[Class B1][Class B2] Certificates (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 June
1, 2007
by and among the Depositor, Aurora Loan Services LLC, as Master Servicer,
Citibank, N.A., as Trustee (the “Trustee”), and Xxxxxxx Fixed Income
Services Inc., as Credit Risk Manager, a signed letter in the form
of this
letter; and we further agree, in the capacities stated above, to
provide
to any person purchasing any of the Privately Offered Certificates
from us
a notice advising such purchaser that resales of the Privately Offered
Certificates are restricted as stated
herein.
|
|
(2)
|
We
understand that, in connection with any proposed resale of any Privately
Offered Certificates to an Institutional Accredited Investor, we
will be
required to furnish to the Trustee and the Depositor a certification
from
such transferee in the form hereof to confirm that the proposed sale
is
being made pursuant to an exemption from, or in a transaction not
subject
to, the registration requirements of the Securities Act. We further
understand that the Privately Offered Certificates purchased by us
will
bear a legend to the foregoing
effect.
|
Exhibit
G-1
|
(3)
|
We
are acquiring the Privately Offered Certificates for investment purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in violation of the Securities Act. We have such knowledge
and experience in financial and business matters as to be capable
of
evaluating the merits and risks of our investment in the Privately
Offered
Certificates, and we and any account for which we are acting are
each able
to bear the economic risk of such
investment.
|
|
(4)
|
We
are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
| (5) |
We
have received such information as we deem necessary in order to make
our
investment decision.
|
| (6) |
If
we are acquiring ERISA-Restricted Certificates, we understand that
in
accordance with ERISA, the Code and the Exemption, no Plan and no
person
acting on behalf of such a Plan may acquire such Certificate except
in
accordance with Section 3.03(d) of the Trust
Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust Agreement.
Exhibit
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: | ||
Exhibit
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. In
the
case of an ERISA-Restricted Certificate, the Investor either (x) is not, and
on
__________________ [date of transfer] will not be, an employee benefit plan
or
other retirement arrangement subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the “Code”), (collectively, a “Plan”)
or a person acting on behalf of any such Plan or investing the assets of any
such Plan to acquire a Certificate; (y) if the Certificate has been the subject
of an ERISA-Qualifying Underwriting, is an insurance company that is purchasing
the Certificate with funds contained in an “insurance company general account”
as defined in Section V(e) of Prohibited Transaction Class Exemption (“PTCE”)
95-60 and the purchase and holding of the Certificate are covered under Sections
I and III of PTCE 95-60; or (z) herewith delivers to the Trustee an opinion
of
counsel (a “Benefit Plan Opinion”) satisfactory to the Trustee, and upon which
the Trustee, the Master Servicer, the Servicer, the Depositor and any NIMS
Insurer shall be entitled to rely, to the effect that the purchase or holding
of
such Certificate by the Investor will not result in any non-exempt prohibited
transactions under Title I of ERISA or Section 4975 of the Code and will not
subject the Trustee, the Depositor, the Master Servicer, the Servicer or any
NIMS Insurer to any obligation in addition to those undertaken by such entities
in the Trust Agreement, which opinion of counsel shall not be an expense of
the
Trust Fund or any of the above parties.
3. In
the
case of an ERISA-Restricted Trust Certificate, prior to the termination of
the
Swap Agreement and the Interest Rate Cap Agreement, either (i) the Investor
is
neither a Plan nor a person acting on behalf of any such Plan or using the
assets of any such Plan to effect such transfer or (ii) the acquisition and
holding of the ERISA-Restricted Trust Certificate are eligible for exemptive
relief under the statutory exemption for nonfiduciary service providers under
Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code, XXXX 00-00,
XXXX 00-0, XXXX 91-38, PTCE 95-60 or PTCE 96-23 or some other applicable
exemption.
Exhibit
H-1
4. The
Investor hereby acknowledges that under the terms of the Trust Agreement (the
“Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
Citibank, N.A., as Trustee, Aurora Loan Services LLC, as Master Servicer, and
Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, dated as of June
1,
2007, no transfer of the ERISA-Restricted Certificates or the ERISA-Restricted
Trust Certificates shall be permitted to be made to any person unless the
Trustee have received a certificate from such transferee in the form
hereof.
Exhibit
H-2
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___.
|
||
Exhibit
H-3
EXHIBIT
I
[RESERVED]
Exhibit
I
EXHIBIT
J
[RESERVED]
Exhibit
J
EXHIBIT
K
DESCRIPTION
OF CUSTODIAL AGREEMENT
|
1.
|
Custodial
Agreement dated as of June 1, 2007 between Deutsche Bank National
Trust
Company, as Custodian, and Citibank, N.A., as
Trustee.
|
Exhibit
K
EXHIBIT
L
DESCRIPTION
OF CREDIT RISK MANAGEMENT AGREEMENT
|
1)
|
Credit
Risk Management Agreement dated June 29, 2007 between the Credit
Risk
Manager and JPMorgan Chase Bank, National Association, as
servicer.
|
Exhibit
L
EXHIBIT
M-1
FORM
OF
TRANSFER CERTIFICATE
FOR
TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(B)
of
the
Agreement)
| Re: |
BNC
Mortgage Loan Trust 2007-3
Mortgage
Pass-Through Certificates Series
2007-3
|
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, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, and
Citibank, N.A., as Trustee, dated as of June 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).
Exhibit
M-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:
,
Exhibit
X-0-0
XXXXXXX
X-0
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: |
BNC
Mortgage Loan Trust 2007-3
Mortgage
Pass-Through Certificates Series
2007-3
|
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, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, and
Citibank, N.A., as Trustee, dated as of June 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:
,
Exhibit
M-2
EXHIBIT
N
INTEREST
RATE CAP AGREEMENT
See
closing book or exhibit to Form 8-K filed with the SEC under
BNC
Mortgage
Loan Trust 2007-3
Exhibit
N
EXHIBIT
O
SWAP
AGREEMENT
See
closing book or exhibit to Form 8-K filed with the SEC under
BNC
Mortgage
Loan Trust 2007-3
Exhibit
O
EXHIBIT
P
[RESERVED]
Exhibit
P
EXHIBIT
Q
FORM
OF
BACK-UP CERTIFICATION TO BE PROVIDED TO
THE
DEPOSITOR AND/OR THE MASTER SERVICER BY THE TRUSTEE
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, BNC 0000-0
Xxxxxx
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
| Re: |
BNC
Mortgage Loan Trust 2007-3
Mortgage
Pass-Through Certificates, Series
2007-3
|
Reference
is made to the Trust Agreement dated as of June 1, 2007 (the “Trust Agreement”),
by and among Citibank, N.A. (the “Trustee”), Aurora Loan Services LLC, as master
servicer (the “Master Servicer”), Structured Asset Securities Corporation, as
depositor (the “Depositor”), and Xxxxxxx Fixed Income Services Inc., as credit
risk manager. 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:
|
(i)
|
The
Trustee has reviewed the annual report on Form 10-K for the fiscal
year
ending on December 31, 200[ ], and all reports on Form 10-D
containing distribution reports filed in respect of periods included
in
the year covered by that annual report, relating to the above-referenced
trust;
|
|
(ii)
|
Based
solely upon the information provided to us pursuant to Sections 6.20(d)
and 6.20(e) and the information provided by us pursuant to Sections
6.20(d) and 6.20(e), the information set forth in the reports referenced
in (i) above does not contain any untrue statement of material fact;
and
|
|
(iii)
|
Based
on my knowledge, the distribution information required to be provided
by
the Trustee under the Trust Agreement, together with the information
specific to and required to be provided by the Trustee pursuant to
Sections 6.20(d) and 6.20(e) is included in these
reports.
|
Date:
| CITIBANK, N.A., as Trustee | ||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
|
||
| Title: | ||
|
|
||
Exhibit
Q
EXHIBIT
R-1
FORM
OF
WATCHLIST REPORT
Exhibit
R-1
EXHIBIT
R-2
FORM
OF
LOSS SEVERITY REPORT
Exhibit
R-2
EXHIBIT
R-3
[RESERVED]
Exhibit
R-3
EXHIBIT
R-4
FORM
OF
PREPAYMENT PREMIUMS REPORT
Exhibit
R-4
EXHIBIT
R-5
FORM
OF
ANALYTICS REPORT
Exhibit
R-5
EXHIBIT
S
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON ASSESSMENT OF COMPLIANCE
To:
[_______]
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 June 1, 2007 (the
“Agreement”), by and among Structured Asset Securities Corporation, as
Depositor, Citibank, N.A., as Trustee, Aurora Loan Services LLC, as Master
Servicer, and Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager.
If
the
Trustee and the Paying Agent are the same party, the servicing criteria of
the
Paying Agent listed below will be included in the Trustee’s report.
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
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.
|
X
|
X
|
|||||||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
|
|
|
X
|
||||||
|
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
|
Exhibit
S-1
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|||||
|
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
|
X
|
||||||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
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
|
X
|
|||||||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
X
|
X
|
Exhibit
S-2
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|||||
|
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
|
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
|
X
|
||||||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
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
|
X
|
Exhibit
S-3
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|||||
|
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
|
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.
|
|||||||||
|
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
|
Exhibit
S-4
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|||||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the
period a pool
asset is delinquent in accordance with the transaction
agreements. Such
records are maintained on at least a monthly basis, or
such other period
specified in the transaction agreements, and describe the
entity’s
activities in monitoring delinquent pool assets including,
for example,
phone calls, letters and payment rescheduling plans in
cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
|||||||||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with
variable rates
are computed based on the related pool asset documents.
|
|||||||||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow
accounts): (A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified
in the
transaction agreements; (B) interest on such funds is paid,
or credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within
30 calendar
days of full repayment of the related pool assets, or such
other number of
days specified in the transaction agreements.
|
|||||||||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance
payments) are made
on or before the related penalty or expiration dates, as
indicated on the
appropriate bills or notices for such payments, provided
that such support
has been received by the servicer at least 30 calendar
days prior to these
dates, or such other number of days specified in the transaction
agreements.
|
|
Exhibit
S-5
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|||||
|
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*
|
* Not applicable.
Exhibit
S-6
EXHIBIT
T
[RESERVED]
Exhibit
T
EXHIBIT
U
FORM
OF
CERTIFICATION
TO
BE
PROVIDED BY THE CREDIT RISK MANAGER
FORM
OF CERTIFICATION
Re:
BNC
Mortgage Loan Trust 2007-3 Mortgage Pass-Through Certificates, Series 2007-3,
issued pursuant to the Trust Agreement dated as of June 1, 2007, among
Structured Asset Securities Corporation, as Depositor (the “Depositor”), Aurora
Loan Services LLC, as Master Servicer, Xxxxxxx Fixed Income Services Inc.,
as
Credit Risk Manager, and Citibank, N.A., as Trustee (the “Trustee”).
XXXXXXX
FIXED INCOME SERVICES INC. (the “Credit Risk Manager”) certifies to the
Depositor, the Sponsor, the Master Servicer, the Trustee, and [10-K Signatory
Entity] its officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification, that:
|
1.
|
Based
on the knowledge of the Credit Risk Manager, taken as a whole, the
information in the reports provided during the calendar year immediately
preceding the date of this certificate (the “Relevant Year”) by the Credit
Risk Manager pursuant to the Master Consulting Agreement dated as
of
January 28, 2004 (the
“Master Consulting Agreement”), by and between the Credit Risk Manager and
Xxxxxx Brothers Holdings Inc. and pursuant to Transaction Addendum
BNC
2007-3 (the “Transaction Addendum BNC 2007-3”), does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under
which such statements were made, not misleading as of the date that
each
of such reports was provided; and
|
|
2.
|
The
Credit Risk Manager has fulfilled its obligations under the Master
Consulting Agreement and Transaction Addendum BNC 2007-3 throughout
the
Relevant Year.
|
| XXXXXXX FIXED INCOME SERVICES INC. | |||
| By: | |||
|
|
|||
| Name: | |||
|
|
|||
| Title: | |||
|
|
Exhibit
U
EXHIBIT
V
TRANSACTION
PARTIES
Sponsor
and Seller: Xxxxxx Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
Citibank, N.A.
Securities
Administrator: Not applicable
Master
Servicer: Aurora Loan Services LLC
Credit
Risk Manager: Xxxxxxx Fixed Income Services Inc.
Swap
Counterparty: Swiss Re Financial Products Corporation
Cap
Counterparty: Swiss Re Financial Products Corporation
Servicer(s):
JPMorgan Chase Bank, National Association
Originator(s):
BNC Mortgage LLC
Custodian:
Deutsche Bank National Trust Company
PMI
Insurer(s): Not applicable
| * |
As
of the Closing Date
|
Exhibit
V
EXHIBIT
W
[Reserved]
Exhibit
W
EXHIBIT
X
Schedule
of Fees for Services as Document Custodian
|
File
Reinstatements/ Rejected File Reinstatements, per file:
|
$4.00
|
|
*
Monthly
Custody Safekeeping, per file, per month:
|
$0.20
|
|
Release
Requests/ Rejected Release Request, per file:
|
$4.00
|
|
Trailing
Document Review and Inter Filing, per document:
|
$2.00
|
|
Completion
of Assignments, per assignment:
|
$2.00
|
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(applicable
if ever required post closing and not an upfront fee that is paid
by the
issuer)
|
|
|
Completion
of Endorsements, per endorsement:
|
$2.00
|
|
(applicable
if ever required post closing and not an upfront fee that is paid
by the
issuer)
|
|
| Copies, per document: |
$2.00
|
| (to be billed to the requesting party) |
|
1
|
The
monthly custody fee will be calculated by multiplying the file
count at
the beginning of the month plus any files added during the
month times the
monthly custody fee.
|
Exhibit
X
EXHIBIT
Y
FORM
OF
CALL OPTION NOTICE
[Date]
[___________]
[___________]
[___________]
Attention:
[___________]
| Re: |
CALL
OPTION NOTICE
|
Trust
Agreement relating to the BNC Mortgage Loan Trust 2007-3 Mortgage
Pass-Through
Certificates, Series 2007-3, dated as of June 1, 2007, among
Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services
LLC,
as
Master Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk
Manager,
and Citibank, N.A., as Trustee
Ladies
and Gentlemen:
In
accordance with the Section 7.01(d)(i) of the above-referenced Trust Agreement,
Aurora Loan Services LLC, as Master Servicer, hereby notifies you that the
option to purchase the Mortgage Loans and certain other property of the Trust
Fund may be exercised on the Distribution Date of this month. The Bid Due Date
for this month is [_____] [__], 20[__].
[In
accordance with Section 7.01(d)(vii) of the Trust Agreement, if no Call Option
Holder submits a Purchaser Call Option Notice on or before such Bid Due Date,
then, on the immediately succeeding Distribution Date, the Master Servicer
may
exercise the option to purchase the Mortgage Loans and certain other property
of
the Trust Fund pursuant to Section 7.01(b) or Section 7.01(c) of the Trust
Agreement.]
Capitalized
terms used and not defined herein are used as defined in the Trust
Agreement.
|
Very
truly yours,
Aurora
Loan Services LLC
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| By: | ||
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| Name: | ||
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| Title: | ||
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Exhibit
Y
EXHIBIT
Z
FORM
OF
PURCHASER CALL OPTION NOTICE
[Date]
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attn:
BNC
2007-3
| Re: |
PURCHASER
CALL OPTION NOTICE
|
Trust
Agreement relating to the BNC Mortgage Loan Trust 2007-3 Mortgage
Pass-Through
Certificates, Series 2007-3, dated as of June 1, 2007, among
Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services
LLC,
as
Master Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk
Manager,
and Citibank, N.A., as Trustee
Ladies
and Gentlemen:
In
accordance with Section 7.01(d)(iii) of the above-referenced Trust Agreement,
[NIM Residual Securities holder][Class X Certificateholder] hereby requests
Aurora Loan Services LLC (the “Master Servicer”) to exercise the option to
purchase on its behalf with respect to all, but no fewer than all, of the
Mortgage Loans and other property of the Trust Fund relating to the BNC Mortgage
Loan Trust 2007-3 Mortgage Pass-Through Certificates, Series 2007-3.
The
Bid
Price for such assets shall be $___________.
Capitalized
terms used and not defined herein are used as defined in the Trust
Agreement.
|
Very
truly yours,
[CALL
OPTION HOLDER]
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| By: | ||
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| Name: | ||
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| Title: | ||
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Exhibit
Z
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “BNC 2007-3 Mortgage Loan
Schedules” at
Xxxxxx
Xxxxxx LLP]
Schedule
A
SCHEDULE
B
FIRST
PAYMENT DEFAULT MORTGAGE LOANS
[To
be
maintained in a separate closing binder entitled “BNC 2007-3
First
Payment Default Mortgage Loans” at Xxxxxx Xxxxxx LLP]
Schedule
B
SCHEDULE
C
DELINQUENCY
DEFAULT MORTGAGE LOANS
[To
be
maintained in a separate closing binder entitled “BNC 2007-3
First
Payment Default Mortgage Loans” at Xxxxxx Xxxxxx LLP]
Schedule
C
